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Department of 


Kecei ved 

Section Shelf. 



U.S.N. A.— 4-20-32— 1000 









I9O I 



The studies in international law at the Naval War Col- 
lege during the summer of 1901 were under the immediate 
direction of Mr. John Bassett Moore, late Assistant Secre- 
tary of State, now of Columbia University. The mention 
to the service of his name gives assurance of the value of 
the present work. To his able and careful labors in the 
present instance the college is deeply indebted. 

The situations were set by Mr. Moore, and tentative 
solutions were sent in by the several committees into which 
the officers in attendance are divided for the college work. 
The 'tentative solutions were then discussed oralty, the dis- 
cussions being presided over and directed by Mr. Moore, 
who prepared and read the accompanying notes, and who 
is also the author of the paper in the appendix, entitled 
" Maritime Law in the War with Spain." The printed 
solutions exhibit the consensus of opinion of all concerned. 

It is believed that by proposing cases simulating those 
which have recently arisen, or which seem likely to arise 
under modern conditions, and bringing to bear in mutual 
discussion the thought and experience of the officers who 
make application of the law, and the trained mind of the 
international jurist who expounds it, a method has been 
adopted which must give to these solutions a practical value 
of great interest and weight. 

The results are submitted to the service in the surety 
that they represent a valuable addition to work in a domain 
of thought which belongs peculiarly to navies. 

F. E. Chadwick, 
Cajjtai?), U. S. JY. , President. 
Naval War College, 

JVewport, R. I., Septemher 5, 1901. 




Situation I — Coast warfare 5 

Solution 5 

Notes 8-37 

Paul Jones 8 

War of 1812 10 

Bombardment of Greytown 12 

Crimean war 22 

Bombardment of Valparaiso 23 

British-French discussions 33 

Chilean revolution, 1891 34 

Rules of Institute of International Law. 18% 35 

Situation II — Contraband 38 

Solution 38 

Notes 41-85 

Spain's action as to sulphur 41 

" Continuous voyages " and civil-war cases 42 

The Dolphin 46 

The Pearl 48 

The Stephen Hart 51 

The Bermuda 55 

The Springbok 64 

Matamoras cases — the Peterhoff 69 

The Science 73 

The Volant 73 

British Government's action 74 

Decision of international commission 78 

Delagoa Bay — German cases 79 

The Bundesrath 79 

The Herzog 80 

The General 81 

Diplomatic arrangement 82 

Delagoa Bay— American cases 84 

The Beatrice, Maria, and Mashona 84 

Situation III — Transportation of military persons 86 

Solution 86 

Notes 88-98 

Decisions of Sir W. Scott 90 

Case in Chile 92 

British-German discussion 94 

Opinions of publicists 96 

Resolutions of Institute of International Law 97 

Professor Holland's opinion 98 

Situation IV — Neutrals and enemy convoy 99 

Solution 99 

Notes 100-107 

Controversy with Denmark 100 

Situation V — Insurgents and contraband 108 

Solution 10S 


Notes 110-187 

Revolution in ( Ihile, lsyi no 

Report of Admiral McCann ill 

Instructions to Admiral Brown Ill 

British correspondence lrj 

Question- of blockade 118 

ires of coal and other cargoes 114 

Payment of duties 116 

Insurrection in Brazil. 1898-94 118 

Question of bombardment 118 

Question of recognition 1 ly 

Commercial operations 1_>0 

United States instructions 121 

Question as to coal 1 23 

Protection of American vessels 128 

Discussion of principles 127-137 

Appendix — Maritime law in the war with Spain 139 

I. Situation prior to the war 139 

II. Declarations of war 143 

III. Additional articles of Geneva Convention 144 

IV. Declarations of neutrality 145 

Purchase of Brazilian vessels 145 

Case of the Monocacy 145 

Docking of vessels at Hongkong 146 

Question of asylum 147 

Coal 148 

V. Declarations as to maritime law 150 

Auxiliary cruisers 151 

Declaration of Paris 152 

Proclamation of April 26, 189* 152 

Royal decree < >f April 23, 189* 153 

VI. Vessels in port before or after tbe outbreak of the war 154 

The Buena Ventura 1 ">4 

The Panama 155 

VII. Vessels sailing for an enemy port before t lie war 157 

The Pedro 157 

VIII. Questions of enemy ownership 159 

The Pedro 159 

The Benito Estenger 160 

The Carlos F. Roses 164 

Bafe-o mduets 165 

IX. Case ( if the fishing smacks 165 

X Questi( >ns of blockade 166 

Instructions of United States lt>7 

Cases of the Lafayette, Polaria, Myrtledene, Folsjo, and Manoubia 167-169 

De facto blockades 167-169 

Neutral men-of-war 170 

Judicial decisions — the Olinde Rodriguez 171 

The Newfoundland IT.) 

The Adula 173 

XL Contraband 1 75 

XII. Commercial relations 176 

United State- instructions 176 

Cable cutting 177 

Disposition of mails 178 

Restoration of commercial intern >urse 179 


A state of war existing between France and Great Brit- 
ain, a descent is made by a French fleet on the English 
coast, and several undefended towns are bombarded. 

The British Government having communicated on the 
subject with the neutral powers, the diplomatic represent- 
atives of the latter at Paris were instructed to address to 
the French Government identic notes, intimating that 
the action of the fleet was inconsistent with the rules of 
The Hague Conference. 

The French Government, in its reply, stated that there 
existed in the several cases special circumstances justify- 
ing the course which was adopted: 

1. In one case a demand was made upon the town for a 
ransom, and was refused. 

2. In another case a requisition for supplies had been 

3. In yet another, the bombardment was an act of re- 
taliation for the destruction of a French man-of-war by 
an English torpedo boat using false colors. 

The French Government, however, while alleging these 
special justifications, reserved the question of the lawful- 
ness of bombarding undefended coast towns for purposes 
other than those stated. 

To what extent is the supposed French answer, both as 
to the special cases stated and as to the general question 
reserved, supported by modern opinion and practice? 


By Article XXV of the "'Regulations respecting the 
Laws and Customs of War on Land," adopted at The 4 
Hague July 29, 1899, "the attack or bombardment of 
towns, villages, habitations, or buildings which are not 
defended is prohibited." 

Although this prohibition, since it is found in regula- 
tions relating only to Avar on land, could not be considered 


expressly applicable to the operations of naval forces, } T et 
it might, if it were unaffected by any other circumstance, 
be considered as in spirit forbidding such a bombardment 
as that in question. 

But it appears that it was expressly agreed at The Hague 
that, without regard to the merits, the question should be 
reserved. In the deliberations of the second subcommittee 
of the second committee the delegate from Italy proposed 
that Article XXV should be made applicable to bombard- 
ments by naval forces. Objections were made to this pro- 
posal (1) because of the incompatibility of an absolute 
prohibition with the possible necessities of a naval force 
in regard to obtaining supplies, and (2) because of the 
inopportuneness of the proposal. The subcommittee, on 
motion of its president, then expressed the opinion that 
the matter should be examined by a future conference. 
The British delegate, however, adverted to the fact that 
his Government had refused to take part in the Brussels 
conference (1874) except on condition that naval questions 
should remain outside the deliberations, lie added that 
he did not desire 4 to touch the merits of the question, but 
to declare that for the reason indicated it was impossible 
for him to associate himself with the subcommittee's 
expression of opinion; and at his request the fact that he 
abstained from voting on it was entered on the record. 
(Conference Internationale de la Paix, part 8, pp. 27-28.) 

The conference, in its final act, July 29, 1899, voted 
certain wishes, among which was the following: 

" The conference expresses the wish that the proposal 
to settle the question of the bombardment of ports, towns 
and villages by a naval force may be referred to a subse- 
quent conference for consideration/' 

This wish formed one of five which "were voted unani- 
mously, saving some abstentions,'' the English delegates 
having abstained from voting. (Blue Book, Misc. No. 1 
(1891 )). 289.) It appears therefore that there would be no 
ground for the supposed representation to France, on the 
part of the neutral governments, in the case stated. 

As to the special circumstances alleged in justification 
of the act complained of, the following observations may 
be made: 


1. By Stockton's Naval War Code, which is binding 
upon American officers, u the bombardment of unfortified 
and undefended towns and places for the nonpa}mient of 
ransom is forbidden." This provision is believed to repre- 
sent the best modern opinion and practice, and it invali- 
dates in principle the first excuse. 

2. As to the second case, the French answer is unsatis- 
factory. In general, a belligerent is forbidden to use 
wanton or disproportionate violence (Hall, 4th ed., 551); 
and the mere denial of supplies does not give the right to 
bombard. (Stockton, Naval War Code, 7.) In the pres- 
ent case there is no claim that the bombardment was in 
any way a military necessity or that it was carried out 
because requisitioned supplies were forcibly withheld; nor 
does it appear that due notice of bombardment was given 
or that any special circumstances, such as might excuse 
the necessity for notice, existed. 

3. The conclusions to be formed as to the third justifi- 
cation depend on several considerations. It does not 
appear by the French answer whether the torpedo boat, 
when she fired her first torpedo or gun, had shown her 
true colors. With reference to the use of false colors, it 
is laid down "that soldiers clothed in the uniforms of their 
enemy must put on a conspicuous mark by which they can 
be recognized before attacking, and that a vessel using the 
enemy's flag must hoist its own flag before firing with shot 
or shell." The United States has taken the lead in forbid- 
ding the use of false colors (Stockton, Naval War Code, 
8); and it is certain that, even in the case of a naval vessel 
of a government which had not laid a like inhibition upon 
its officers, the failure to display the true colors before the 
actual attack would constitute a flag-rant violation of the 
laws of war, which should be brought to the notice of that 
government and punished by it. 

A reasonable opportunity for explanation and repara- 
tion should be given, after which, if redress should be neg- 
lected or refused, a right of retaliation would arise. If 
possible, retaliation should be in kind, unless the action 
was, as in this case, a gross violation of the dictates of 
humanity and of civilized warfare. (Snow, 93.) At the 
same time it is enjoined that in making reprisals due regard 


must always be had to the duties of humanity (Stockton. 
Naval War Code, 8); and it would be desirable to perform 
an act of retaliation which would not, as in the present 
case, fall upon people apparently sustaining no proximate 
relation to the perfidy complained of. 


/'<//// Jones, — During- tin 4 year 177l> John Paul Jones, in 
command of the sloop-of-war Providence, 14 guns and L07 
men. on a cruise ranging from the Bermudas to Nova 
Scotia, made several incursions ashore for the purpose of 
seizing British stores, releasing American prisoners, and 
destroying British shipping. 1 These incidents, while they 
convinced him of the essential importance of a navy to the 
American cause, left on his mind a clear impression "that 
the best use to be made of the small force that could be put 
afloat was to direct it, not so much upon tin 4 enemy's com- 
merce at sea in upon his coasts and commercial 
stations, where his shipping would be found congregated, 
with insufficient local protection. Commerce destroying, 
to use the modern phrase for an age-long practice, is a wide 
term, covering many different methods of application. In 
essence, it is a blow at the communications, at the resources 
of the country; in system it should be pursued not by ran- 
dom prowling, by individual ships for individual enemies 
as they pass to and fro, but by despatching adequate force 
to important centers, where the hostile shipping for any 
reason is known to accumulate. * * * Let a single 
ship of war — commerce destroyer — meet twenty or thirty 
merchant ships at sea, he can take but few; the rest scat- 
ter and escape, and the prisoners must be cared for. Cor- 
ner the same squadron in port, and neither difficulty, as a 
rule, exists." 2 

In his statement to the Marine Committee of the Con- 
tinental Congress on a proposed scheme for the new navy, 
he advised against ships of the line, on the ground that the 
United States were not then prepared to contend with 
Great Britain for mastery of the sea on a grand scale, and 
recommended the immediate construction of live or six 

1 Buell, Paul Jones, Founder of the American Navy, I, 53. 
2 Captain Marian, Scrib faea^in^, July, 1898. 


frigates, of which fast sailing was to be a prime quality. 
"Keeping," he said, "such a squadron in British waters, 
alarming their coasts, intercepting their trade, and descend- 
ing now and then upon their least-protected ports, is the 
only way that we, with our slender resources, can sensibly 
affect our enemy })y sea warfare. Rates of insurance will 
rise; necessary supplies from abroad, particularly naval 
stores for the British dockyards, will be cut off; transports 
cariying troops and supply ships bringing military stores 
for land operations against us will be captured, and last 
but not least, a considerable force of their ships and seamen 
will be kept watching or searching for our frigates." * 

Two descents were made by Jones on the British isles, at 
Whitehaven and St. Mary's Island. The purpose of the 
descent at Whitehaven was the destruction of the shipping; 
of that at St. Mary's Island, the seizure of the Earl of 
Selkirk as a hostage for the better treatment of American 
prisoners then in England. The Earl was not at home 
at the time. Plate, taken from his castle by some of the 
landing party, was afterwards restored by Jones at his 
own expense. Whitehaven was defended by two small 
forts. As to the descent at Whitehaven Jones reported: 
"Its actual results were of little moment, for the intended 
destruction of shipping was limited to one vessel. But 
the moral effect of it was very great, as it taught the 
English that the fancied security of their coasts was a 
myth and thereby compelled their Government to take 
extensive measures for the defense of numerous ports 
hitherto relying for protection wholly on the vigilance 
and supposed omnipotence of their navy. It also doubled 
or more the rates of insurance, which in the long run 
proved the most grievous damage of all. 

5? 2 

^uell, I, 38-42. 

2 Buell, I, 109-114. As to the case of the Earl of Selkirk, Mr. Buell 
expresses the opinion that "a project to seize the person of a non- 
combatant nobleman with a view of holding him as a hostage or of 
coercing him to use his influence with his Government for the better 
treatment of prisoners of war, fairly captured, can hardly be brought 
within the most liberal definition of civilized warfare," and that "the 
fact that it had many examples in the conduct of British landing par- 
ties on our own coast is no justification," as "two wrongs do not make 
one right." 


Landings at different points on the British coasts were 
planned for the expedition in the Bon Hbmriit Richard, 
in 1 77*.*, but in deference to French wishes those were 
abandoned and a cruise against commerce in the open 
sea made 4 instead. 1 

War of 1812, — The later stages of the war of 1 s L i? were 
marked by incursions of the British naval forces at vari- 
ous points on the coast of the Chesapeake Bay. in retalia- 
tion for acts of the United States troops in Canada. 2 The 
threat of Admiral Cochrane to enter upon such a course 
was the subject of a correspondence between him and Mr. 
Monroe, then Secretary of State, in August and Septem- 
ber, 1814. 3 But in April and May, 1813. several towns 
along the Chesapeake were devastated by the forces 
under Rear-Admiral Cockburn, when the plea of retalia- 
tion was not alleged. 4 It appears that Cockburn's orders 
were to destroy everything that could serve a warlike 
purpose, and to interrupt, as far as possible, communica- 
tion along the shore."' On April 28 he reached French- 
town, a village of a dozen buildings, where he drove away 
the few Americans who made a show of resistance, and 
burned a quantity of property, "consisting of much flour, 
a large quantity of army clothing, of saddles, bridles, and 
other equipments for cavalry, etc., together with various 
articles of merchandise." besides rive vessels lying near the 
place. 1 ' 

The first destruction of the town itself took place at 
Havre de Grace, a place of some sixty houses. The 
immediate object of the attack was the destruction of a 
battery lately erected there. The British forces u met 
with only resistance enough to offer an excuse for pillage." 7 
The battery was soon silenced, and the boat's crew having 
landed drove the militia to the further extremity of the 

'Captain Mahan, Scribner'e Magazine, XXIV, 34. 

-Adams' History of the United States, VIII, 124-12X. 
5 Am. State Papers, For. Rel., Ill, 693-694. 

4 Reports of Rear-Admiral Cockburn to Admiral Warren, James' 
History of the War in America, II, 404-411. 

5 Adams, VII, 2<if>, citing London Gazette, July <i. 1813. 
"Adams, VII, 2(>6-2(>7, citing the London Gazette. 

7 Adams, VII, 2<>7. 

WAR OF 1812. 11 

town, where, according to Cockburn's report, "no longer 
feeling themselves equal to an open and manly resistance, 
they commenced a teasing and irritating fire from behind 
the houses, walls, trees, etc., from which, I am sorry to 
say, my gallant first lieutenant received a shot through his 
hand whilst leading the pursuing party; he, however, con- 
tinued to head the advance, with which he soon succeeded 
in dislodging the whole of the enemy from their lurking 
places and driving them for shelter to the neighboring 
woods. * * * After setting fire to some of the houses, 
to cause the proprietors (who had deserted them and 
formed part of the militia who had fled to the woods) to 
understand and feel what they were liable to bring upon 
themselves by building batteries and acting towards us 
with so much useless rancor, I embarked." 1 According to 
an American account of the affair, the militia, on the kill- 
ing of a man b} r a rocket, fled precipitate! y, and the 
marines then proceeded to plunder and burn the houses, 
of which about forty were destroyed. This account gives 
the impression that there was little, if any, firing from the 
houses. 2 

Subsequently the villages of Georgetown and Freder- 
icktown were destroyed. In his report concerning them 
Admiral Cockburn makes no mention of irregular firing. 
He says: 

" 1 sent forward the two Americans in their boat to 
warn their countrymen against acting in the same rash 
manner the people of Havre de Grace had done, assuring 
them, if they did, that their towns would inevitably meet 
with a similar fate; but, on the contrary, if they did not 
attempt resistance, no injury should be done to them or 
their towns; that vessels and public property only would 
be seized; that the strictest discipline would be maintained; 
and that, whatever provisions or other property of individ- 
uals I might require for the use of the squadron, should 
be instantl} 7 paid for in its fullest value. *•**.! am 
sorry to say, 1 soon found the more unwise alternative was 
adopted; for on our reaching within about a mile of the 
town, between two projecting elevated points of the river,. 

Barnes, II, 406. 2 North Am. Rev., V. (July, 1817), 157. 


a most heavy fire of musketry was opened on us from 
about 4<>0 men, divided and entrenched on the two oppo- 
site banks, aided by one long gun. The launches and 
rocket boats smartly returned this fire with good effect, 

and with the other boats and marines. I pushed ashore 
immediately above the enemy's position, thereby ensuring 
the capture of tin 4 town or the bringing him to a decided 
action. He determined, however, not to risk the latter, 
for the moment he discerned we had gained the shore, and 
that the marines had fixed their bayonets, he fled with his 
whole force to the woods, and was neither seen nor heard 
of afterwards, although several parties were sent out to 
ascertain whether he had taken up any new position, or 
what had become of him. I gave him. however, the mor- 
tification of seeing, from w T herever he had hid himself, 
that I was keeping my word with respect to the towns, 
which (excepting the houses of those who had continued 
peaceably in them, and had taken no part in the attack 
made upon us) were forthwith destroyed." 

In these affairs, Admiral Cockburn seemed to have acted 
on the old idea that where a useless defense is made, those 
who resist are not entitled to the privileges of belligerents. 
" Where he met no resistance he paid in part for what 
private property he took.'' 1 

Bornbarcforient of Greytown^ or San Juan del Norte, — 
In March. 1852, the Mosquito authorities, by a proclama- 
tion issued by the British consul, called on the people of 
" ( rreytown," a name which had been given to the town of 
San Juan del Norte, in Nicaragua, to form a constitution 
and set up a government. This government came into 
power on May 1. 1852, the Mosquito authorities surrender- 
ing their functions and retiring from office. A contro- 
versy soon broke out between the new authorities and the 
Accessory Transit Company, an organization composed of 
citizens of the United States who held a charter from 
Nicaragua, as to the occupation by the company of a 
portion of land on the north side of the harbor known as 
Punta Arenas, over which jurisdiction was claimed by the 
municipality. Greytown was regarded by the United 
States as being within the limits of Nicaragua. It was 

1 Adams, VII, 269; North Am. Kev., V, 157, July, 1817. 


understood to claim independence under a charter from 
the Mosquito King; but the United States never recognized 
the Mosquito King nor the independence of the town, 
though American naval officers were instructed to respect 
the police regulations of any de facto authorities there, 
and not to molest such authorities unless they should 
attempt to disturb the rights of American citizens. 

February 8, 1853, the cit} T council passed a resolution 
notifying the Accessory Transit Company to remove 
certain buildings within five days and its entire establish- 
ment within thirty days, and declaring that if this was 
not done summary measures would be taken, as the land 
was needed for public uses. The buildings which were to 
be removed within five days were a structure used for 
boarding and lodging the employees of the company and 
a brick oven belonging* to one McCerren, a citizen of the 
United States, who at the time was absent. They were 
not removed; and on February 21 they were demolished 
by a party of armed men, who, accompanied by the mar- 
shal of Gre\ T town, and under the joint command of a 
member of the city council and " Major" Lyons, a colored 
resident, "acted in a most outrageous manner, not even 
permitting the clerks of the company to save the property 
in the house, and actually imprisoned and fined one of them 
for attempting to rescue some valuable articles from 
destruction." 1 When, a few da} r s later, Mr. Baldwin, the 
agent of the company, Avent to Greytown to invoke the 
protection of a British man-of-war, he was arrested and 
held some time in custody. 2 

March 10, 1853, Capt. Hollins, of the U. S. S. Cyane, 
arrived at Greytown. The agent of the company imme- 
diately invoked his protection, and he promptly advised 
the mayor of the town that he could not permit any dep- 
redations on the property of the company. The mayor 
replied that no "depredations" had been or would be 
made upon the property of the compan} r , but that he 
should proceed to eject the company according to law. 
unless illegally prevented by a superior force. It was 

K^pt. Hollins to the Secretary of the Navy, March 30, 185:',, Br. & 
For. State Papers, XL VII, 1033-1044. 
2 Br. & For. State Papers, XL VII, 1019. 


afterwards Learned that a force from the town was under 
arms, preparing to proceed against Punta Arenas and the 
Accessory Transit Company, and that the destruction of 
the company's property by tire was threatened. Capt. 

] [ollins then placed a marine guard on Punta Arenas, with 
instructions to inform the "marshal" that the property 

could not be molested. When the marshal landed he was 

advised, and he then mustered his "posse of carpenters" 

and returned to Greytown. In consequence of many 

threats and manifest excitement among the citizens of the 
town. Capt. Ilollins continued tin 4 guard at Punta Arenas 
and warned the citizens of Greytown of his intention to 
protect the persons and property of citizens of the United 
States against molestation. His proceedings were ap- 
proved by the Secretary of the Navy. 1 

In consequence of the dispute as to jurisdiction over 
Punta Arenas, the difficulties between the municipality 
and the Accessory Transit Company continued. Early in 
May. 1853, some men. who were then or had previously 
been employed by the company, ran off with some of its 
property in a boat to Greytown. The\ T were pursued by 
employees of the company, who. while attempting to ar- 
rest the fugitives, were compelled by the municipal police 
to desist. Subsequently a clerk of the company who. un- 
der orders of the agent, sought to recover the boat was 
forcibly interrupted by the police, and was obliged to leave 
behind some of the stolen property, which afterwards dis- 
appeared. On the same day a warrant was issued for the 
arrest, on a charge of assault and battery, of one of the 
employee- who had endeavored to seize the fugitive-. 
The agent of the company, on jurisdictional grounds, re- 
fused to allow the service of the warrant at Punta Arena-, 
but the marshal returned and effected the arrest with a 
force of armed men. The prisoner, whose name was 
Sloman, was taken to Greytown. where Mr. Fabens, the 
U. S. commercial agent, procured his discharge under 
bond. The company's agent was afterwards arrested at 
Greytown and held to bail on a charge of having obstructed 
Sloman's arrest at Punta Arenas. 

»Br. and For. State Papers, XLVII, 1012-1018. 
2 British and Foreign State Papers, XLVI, 859. 


Disputes also existed as to the payment of dues and port 
charges by the steamers of the Accessory Transit Com- 
pany. The agent of the company finally instructed the 
officers of the steamers to pay no more port charges at 
Greytown and to take no letters or packages or freight for 
its inhabitants. This action much exasperated the people 
of the town. 

On the evening of .May 16, 1854, a difficulty of more 
serious import occurred. The population of Greytown 
then numbered about 300 persons, consisting of a few 
Englishmen. Frenchmen. Germans, and men from the 
United States, but mainly of negroes from Jamaica and 
some natiyes of the Mosquito shore. On the day men- 
tioned the steamer Routh., of the Accessory Transit Com- 
pany, arrived at Punta Arenas under the command of 
(apt. T. T. Smith, and took her position alongside the 
steamer Northern Light to deliver her passengers. About 
dusk a bungo, haying on board 25 or 30 armed men. 
mostly Jamaica negroes headed by a mulatto as marshal, 
came over from Greytown and ran alongside the Routh, 
The marshal, accompanied by several armed men. then 
jumped on board and announced their purpose to arrest 
Captain Smith under a warrant from the mayor of Grey- 
town on a charge of murder, based upon the shooting by 
Captain Smith of a native boatman. 

At this stage of the proceedings Mr. Borland. United 
States minister to Central America, who was on board the 
Northern Light on his way to the United States, was 
appealed to. He went on board the Routh and found 
(apt. Smith standing at his cabin door, keeping the mar- 
shal and his men at bay. Mr. Borland informed the mar- 
shal that the United States did not recognize the authority 
of the municipality at Punta Arenas to arrest an American 
citizen, and ordered him with his men to withdraw. 
Meanwhile, loud and threatening language was used by 
the men on the bungo. and several of them rushed on 
board the steamer. A further invasion was prevented by 
Mr. Borland taking a rifle and warning the men on the 
bungo to keep off. 

Early in the evening Mr. Borland went to Greytown to 
call upon Mr. Fabens, the United States commercial agent. 
0482-01 2 


He then Learned that, at a meeting of the people of the 
town, it hud been resolved to arrest him. This meeting 1 
was presided over by the mayor, a Frenchman named 
Siguad, who. though he afterwards disavowed responsi- 
bility tor what took place, was said to have been present 
when it was proposed by Martin, the ex-mayor, to make 
the arrest. The attempt was made. A body of men. con- 
sisting in part of the regular police of the town, armed 
with muskets, and headed by a Jamaica negro, went to Mr. 
Fabens's house and announced that they came by order of 
the mayor to arrest Mr. Borland for preventing the arrest 
of Cupt. Smith. Mr. Borland appeared and warned them 
against the consequences of what they proposed, and called 
several gentlemen who were in an upper room to wit- 
ness tin 1 threatened assault upon him. The leader of the 
armed force then summoned Martin, the ex-mayor, as if to 
consult him. hut Martin not answering, they drew oft' a little 
way from the door. The mayor then came up and assured 
Mr. Borland that tin 4 proceedings had been taken without 
his order and authority: and while the conversation was 
going on someone from the crowd threw a broken bottle 
at Mr. Borland, slightly wounding* him in the face. The 
person who threw the missile was not recognized. Soon 
afterwards the crowd dispersed. At Mr. Borland's request. 
Mr. Fabens proceeded in a boat to the Northern Light in 
order if possible to obtain aid. On deliberation, it was 
decided that a committee of three passengers should return 
with Mr. Fabens to Greytown, communicate with Mr. Bor- 
land and agree upon a proper course to be taken. The boat 
bearing them, though notice 4 was given that the consul was 
on it. was tired on and not allowed to land, and was thus com- 
pelled to return to the Nortfoern Light* During the night 
the town was occupied by armed men, whose sentinels, sta- 
tioned between the American consulate, where Mr. Bor- 
land was, and the harbor, challenged all who attempted to 
pass, prevented boats from landing or leaving the shore, 
and thus kept Mr. Borland a prisoner all night. On the 
following morning, between seven and eight o'clock. Mr. 
Borland, taking advantage of a momentary lull in the 
excitement, procured a boat and returned to the Northern 
J/kjJiK where it was decided, at a meeting of the passen- 


<>ers, to enffaere the services of fifty men to act as an armed 
aruard at Punta Arenas till the United States Government 
could l>e informed of the state of affairs. 1 

Mr. Marcy, who was then Secretary of State, on June 
3, 1854. informed Mr. Fabens that a man-of-war would be 
ordered to visit San Juan; that the conduct of the people 
there had attracted the attention of the Government of 
the United States and would not pass unnoticed; and that 
the inhabitants of the place would be expected to make repa- 
ration for the wrongs and outrages they had committed. 
On the 9th of June he advised Mr. Fabens thatCapt. Hollins 
would immediately proceed to San Juan. The Government, 
said Mr. Marcy. was embarrassed by the rumor that the 
pretended civil and political authority of the place had dis- 
solved: nevertheless, should there be no organized body 
upon which a demand for redress could be made, the indi- 
viduals who had participated in the infliction of the wrongs 
could not escape from responsibilities resulting from the 
conduct of the late political organization. The people of 
San Juan were expected to repair the injury they had 
caused to the Accessory Transit Company by withholding 
from it the property which had been stolen and taken to 
San Juan, and by protecting persons who were guilty of 
felony. Moreover, the indignity to Mr. Borland could 
not, declared Mr. Marcy. pass unnoticed. If done by order 
of the authorities of the place, they must answer for it in 
their assumed political character, and nothing short of an 
apology for the outrage would save the place from the in- 
fliction that such an act merited. If it was committed by 
lawless individuals, without the authority or connivance 
of the town, then it was clearly the duty of those who ex- 
ercised the civil power in San Juan to inflict upon them 
exemplary punishment. The nominal magistrates there, 
in neglecting to bring them to justice, would impliedly sanc- 
tion their acts and assume responsibility for them. 2 

The instructions of Mr. Dobbin. Secretary of the Navy, 
to Capt. Hollins bear date June LO, 1854. They refer to 
the two incidents of the stealing of the company's property 

1 Br. and For. State Papers, XL VI, 866-872. 
- Br. and For. State Papers, XLVI, 847. 


and the indignity to Mr. Borland. Capt. Hollins was to 
consult freely with Mr. Fabens. it was. declared the 
instructions, very desirable that tin 1 people of Greytown 
••should be taught that the United States will not tolerate 
these outrages, and that they have the power and deter- 
mination to check them. It is. however, very much to be 
hoped that you can effect the purposes of your visit with- 
out a resort to violence and destruction of property and 
loss of life. The presence of your vessel will, no doubt, 
work much good. The Department reposes much in your 
prudence and good sense." 1 

June 12. L854, Mr. Fabens informed Capt. Hollins. who 
had then arrived at San Juan, that he had demanded, on 
behalf of the United States, an indemnity for tin 4 property 
feloniously taken from the Accessory Transit Company, 
lie had also renewed the demand for indemnity for the 
destruction of the company's property in March, 1853. 
He had learned that, although a second demand for satis- 
faction had been made, no redress would be gfiven: nor 
would any apology be made by the town or its authorities 
for the insult to Mr. Borland, nor would any steps be 
taken to bring the perpetrators to justice, lie added 
that the chief actors and instigators were in undisputed 
possession of the town, its arms and ammunition, and the 
people were thus virtually countenancing and approving 
the indignity. 2 

On July \'2 Capt. Hollins. at 9 o'clock in the morning, 
issued a proclamation announcing that, if the demands for 
satisfaction presented by Mr. Fabens were not forthwith 
complied with, he would, at !> o'clock a. m. of the follow- 
ing day, proceed to bombard the town. The particular 
demands in question were 4 those specified in a letter of 
Mr. Fabens. of July 11. addressed "To those now or 
lately pretending to and exercising authority in and to 
the people of San Juan del Norte." They comprised the 
immediate payment of $24,000 as an indemnity for injuries 
to the Accessory Transit Company and for outrages per- 
petrated on the persons of American citizens, and an 

1 Br. and For. State Papers, XIA'I. 875. 
*Br. and For. State Papers. XLVI. 877. 


apology for the indignity to Mr. Borland, together with 
.satisfactory assurances of future good behavior. 

After the issuance of the proclamation, a force went 
ashore from the Cyane and secured the arms and ammu- 
nition on shore. At the same time foreigners generally, 
and persons favorable to the United States, were notified 
that a steamer would he in readiness on the morning of 
the bombardment to convey them to a place of safety. 
An offer was also made to Commander Jolley, of the Brit- 
ish war schooner Bermuda, of assistance in removing any 
British persons or property. He responded with tin 4 fol- 
lowing protest: 

"The inhabitants of this city, as well as the houses and 
property, are entirely defenseless and at your mercy. 1 
do. therefore, notify you. that such an act will be without 
precedent among civilized nations: and I beg to call your 
attention to the fact that a large amount of property of 
British subjects, as well as others, which it is my duty to 
protect, will be destroyed: but the force under my com- 
mand is so totally inadequate for this protection against 
the Cyane, I can only enter this my protest/' 

Capt. Hollins at once replied: 

"The people of San Juan del Norte have seen fit to com- 
mit outrages upon the property and persons of citizens of 
the United States after a manner only to be regarded as 
piratical, and I am directed to enforce that reparation 
demanded by my Government. Be assured I sympathize 
with yourself in the risk of English subjects and property 
under the circumstances, and regret exceedingly the force 
under your command is not doubly equal to that of the 

A steamer was sent to the town at daylight on the morn- 
ing of the 13th to take away such persons as desired to go. 
A few only accepted the opportunity, and these were con- 
veyed to Punta Arenas. The majority of the inhabitants 
either had left or were willing to remain and risk the con- 
sequences. It was hoped that the show of determination 
on the part of the ship would at this stage have brought 
about a satisfactory adjustment of differences: but none 
of the inhabitants called upon Capt. Hollins, and no expla- 
nation or apology was attempted. 


At '.♦ o'clock in the morning of the L3th the batteries of 
the Cyani were opened on the town with shot and -hell 
for three-quarters of an hour. After an intermission of 
the same length they were opened again for halt* an hour, 
and this was followed by an intermission of three hours, 
after which the firing was renewed for twenty minutes, and 
then the bombardment ceased. The object of the several 
intervals in the bombardment was to afford an opportunity 
to the people of the town to treat and arrange matter-. 
Xo advantage was taken of it. and at four o'clock p. m. a 
force was sent ashore to complete the destruction of the 
town by tire, though instructions were given to exempt 
from destruction, if possible, the property of a French- 
man named De Bardwell, who was understood to have 
held aloof from the action of the people. No lives were 
lost, although an attack was made by an armed party on 
the men who wen 1 sent ashore; but on the volley being 
returned the assailants tied. "The execution." says ('apt. 
Hollin>. "(lone by our shot and shell amounted to the 
almost total destruction of the buildings; hut it was 
thought best to make the punishment of such a character 
as to inculcate a lesson never to be forgotten by those who 
have for so lone- a time set at defiance all warnings, and 
satisfy the whole world that the United States have the 
power and determination to enforce that reparation and 
respect due to them as a Government in whatever quarter 
the outrages may be committed.** 1 

This transaction was fully discussed in President Pierce's 
second annual message of Dec. 4. is.")-!, which contains the- 
following comments: 

"This pretended community, a heterogeneous assem- 
blage gathered from various countries, and composed for 
the most part of blacks and persons of mixed blood, had 
previously [to the mobbing of Mr. Borland] given other 
indications of mischievous and dangerous propensities. 
Early in the same month property was clandestinely 
abstracted from the depot of the Transit Company and 
taken to (ireytown. The plunderers obtained shelter 
there and their pursuer- were driven back by its people, 

l Br. and For. state Papers, XIA'J. 878, «-t seq. 


who not only protected the wrongdoers unci shared the 
plunder, but treated with rudeness and violence those who 
sought to recover their property. * * * I could not 
doubt that the case demanded the interposition of this 
Government. Justice required that reparation should be 
made tor so man}^ and such gross wrongs, and thtit a 
course of insolence and plunder, tending directly to the 
insecurity of the lives of numerous travelers and of the 
rich treasure belonging to our citizens passing over this 
transit way, should be peremptorily arrested. Whatever 
it might be in other respects, the community in question, 
in power to do mischief, was not despicable; It was well 
provided with ordnance, small arms, and ammunition, and 
might easily seize on the unarmed boats, freighted with 
millions of property, which passed almost daily within its 
reach. It did not profess to belong to any regular gov- 
ernment, and had, in fact, no recognized dependence on 
or connection with any one to which the United States or 
their injured citizens might apply for redress or which 
could be held responsible in any way for the outrages 
committed. Not standing before the world in the attitude 
of an organized political society, being neither competent 
to exercise the rights nor to discharge the obligations of 
a government, it was, in fact, a marauding establishment 
too dangerous to be disregarded and too guilty to pass 
unpunished, and yet incapable of being treated in any 
other way than as a piratical resort of outlaws or a camp 
of savages depredating on emigrant trains or caravans 
and the frontier settlements of civilized states. * * :: * * 
No individuals, if an}^ there were, who regarded them- 
selves as not responsible for the misconduct of the com- 
munity adopted any means to separate themselves from 
the fate of the guilty. The several charges on which the 
demands for redress were founded had been publicly 
known to all for some time, and were again announced to 
them. Thev did not denv anv of these charges: thev 
ottered no explanation, nothing in extenuation of their 
conduct, but contumaciously refused to hold any inter- 
course with the commander of the Cyane. By their obsti- 
nate silence they seemed rather desirious to provoke chas- 
tisement than to escape it. * * * AVhen tin 4 Cyane 


was ordered to Central America it was confidently hoped 

and expected that no occasion would arise for a 'resort to 
violence and destruction of property and loss of life." 
Instructions to that effect were ofiven to her commander; 


and no extreme act would have been requisite had not the 
people themselves, by their extraordinary conduct in the 
affair, frustrated all the possible mild measures for obtain- 
ing satisfaction. * * * 

"This transaction has been the subject of complaint on 
the part of some foreign powers, and has been character- 
ized with more of harshness than of justice. It' compari- 
sons were to be instituted, it would not l>c difficult to pre- 
sent repeated instances in the history of states standing in 
the very front of modern civilization where communities 
far less offending and more defenseless than Greytown 
have been chastised with much greater severity, and where 
not cities only have been laid in ruins, but human life has 
been recklessly sacrificed and the blood of the innocent 
made profusely to mingle with that of the guilty." 

The Government of the United States declined to enter- 
tain the claims of French subjects, growing out of the 
bombardment, on the ground that persons domiciled at 
Greytown must look to that community for protection. 1 

It is to be noticed that President Pierce, in the passages 
above quoted, clearly assumed the position that the inhab- 
itants of Greytown were not as a body entitled to be treated 
a- a civilized and responsible community. 

Tin Crimean War. — In the Moniteur of May 6, 1854, is 
given the report of the French admiral on the bombard- 
ment of Odessa, which had taken place on April '2'2. It 
was claimed that a flag of truce had been fired on and that 
the bombardment was in retaliation. The bombardment 
was directed at the public establishments, the public ves- 
sels, and the fortifications, the city itself and the merchant 
vessels being spared. The admiral mentions the fact that 
his orders had directed him to spare open towns. 

At pp. 331-347 of the British Expedition to the Crimea. 
by W. II. Russell, the London Times correspondent, is 

Mr. Marcy, See. of State, to Count Sartiges, French minister, Feb. 
26, L857, S. I".\. Doc. «.t. :;.") Cong. 1 Bess.; Lawrence's WheatoD | L863), 
17:;. note 59. 


given the history of the expedition to the Sou of Azov. 
During this expedition numerous landings were made 
along the shore, and extensive plundering was engaged in. 
These proceedings are referred to by a writer in the Times, 
Aug. 31, 1888, who signs Haud Ignarus Malt. He states 
that at various places on the Sea of Azov large stores of 
corn, private property, were burnt, and that the English 
press approved rather than condemned what was done. 

Bombardment of Valparaiso. — The series of events which 
culminated in the bombardment of Valparaiso by a Span- 
ish squadron. March 31. 1866, originated in a controversy 
between Spain and Peru, known as the "Talambo" ques- 
tion, and involving alleged delays, defaults, and denials of 
justice in the administration of the criminal law by the 
tribunals of the latter country. 1 On the refusal of Peru 
to comply with certain demands for redress, as well as to 
receive and negotiate with a new diplomatic agent of Spain, 
on whose life attempts were alleged to have been made by 
Peruvians, a Spanish squadron took possession of the 
Chincha Islands. Any design against the territorial integ- 
rity of Peru was afterwards disclaimed, but the seizure of 
the islands was accompanied with a manifesto in which it 
was intimated that, as Spain had never acknowledged the 
independence of Peru, she might rightfully reassert her 
ancient title to them.'' 

When intelligence of these things reached Chile it pro- 
duced great excitement, and every effort was made to force 
the Government into a warlike attitude. May 1. 1864, 
Senor Tocornal, then Chilean minister for foreign affairs, 
addressed to the Governments of America a circular in 
which he declared that the manifesto issued by the Span- 
ish representatives in Peru sanctioned principles which 
placed in doubt the independence of that country and 
must therefore be reprobated and protested against by 
Chile, and he expressed confidence that the Spanish 
Government would not approve it. This circular, how- 
ever, was not considered sufficiently demonstrative; and 
on May 7 Senor Tocornal, yielding to popular clamor. 
resigned. He was succeeded by Senor Covarrubias. It 

1 Dip. Cor.. 1864, TV. 15, IS. 

-Dip. Cor., 1864, IV. 23, 32, 35, 87, 89. 


m:is understood t hat orders were issued to officials along 
the coast to refuse supplies and coal to Spanish men-of- 
war, and in the following September a decree was promul- 
gated declaring coal to be contraband of war and directing 
that supplies of it be withheld from public vessels of a 
state employed in hostilities against another state. 1 

The relations between Spain and Chile were soon aggra- 
vated by various incidents. Instructions were issued to 
Admiral Pareja, commanding the Spanish forces in the 
Pacific, which invested him with plenipotentiary powers. 
The Spanish minister at Santiago, Mr. Tavira. sought, 
however, to effect an amicable arrangement. In a note of 
May 13, 1865, he set forth the grievances of his Govern- 
ment. The note complained of popular affronts to the 
Spanish flag, at which officials were alleged to have con- 
nived; of Mr. Tocornal's circular of .May 4; of the failure 
to correct expressions of public opinions which contra- 
vened the law; of the permission given to the Peruvian 
war steamer Lerzwidi to obtain munitions of war and sup- 
plies and to enlist men, while obstacles were placed in the 
way of sending supplies to the Spanish squadron; of the 
failure to prevent unlawful expeditions; of the refusal to 
allow Spanish steamers to take coal, and of the decree 4 
declaring coal to be contraband of war. with the object of 
prejudicing Spain; of the subsequent permission given to 
Peru to purchase horses, which were contraband of Avar 
by the law of nations; and of the failure to bring actions 
for certain libels in the press. Mr. Tavira stated that his 
Government would be willing to receive " the solemn 
declarations" which the case demanded, provided they 
were compatible with its dignity. Mr. Covarrubias 
replied on May 16, 1865, reviewing the subjects of com- 
plaint, flattering himself that he had dissipated them, and 
declaring that his explanations were a fresh testimonial to 
the constant yearning and efforts of his Government to 
maintain friendly relations with Spain. Mr. Tavira re- 
sponded, on May 'UK saying that the explanations given 
dissipated, in his judgment, all motives of complaint, and 
that he would advise his Government of them. 

1 Dip. Cor., 1S(>4, IV, L79-183, L89-190. 


The Spanish Government repudiated Mr. Tavira's action 
and charged him with antedating the note of May 13, in 
order to make it appear that it was sent before the arrival 
of instructions which he received on the 14th of that month. 
He was removed from his post and ordered home. The 
terms of settlement insisted upon in the instructions 
embraced disapproval of or apology for the grievances of 
Spain, and a salute to the Spanish flag, which would be 
immediately returned and no indemnity asked. If these 
terms were refused Admiral Pareja was authorized to take 
measures of another kind. Spain reserving the right to 
exact indemnities for the past and guarantees for the 
future. 1 . 

Admiral Pareja was instructed, if Chile refused the 
demands of Spain, to address, in the first place, a circular 
to all the Spanish-American Republics assuring them that 
Spain had no designs on their territory or independence 4 . 
He was then to put the whole Chilean coast under block- 
ade. This blockade was to continue one month, and if 
Chile had not then accepted the conditions offered by 
Spain he was authorized to perform any and every other 
hostile act against the power and prosperity of Chile 
recognized as legitimate in a state of war, throwing upon 
the Chilean Government the responsibility. The point on 
which Spain specially insisted was the salute to her flag, 
which she felt had been insulted. If such a salute was 
given, it would be immediately returned by the Spanish 
fleet, a new minister would instantlv be sent to Santiago, 
and the Spanish forces would be withdrawn from the 
Pacific. The Spanish minister of state repeatedly declared 
that his Government would not permanently occupy any 
Spanish- American territory . 8 

September 17, 1865, Admiral Pareja, who, although a 
diplomatic agent of Spain then resided at Santiago, was 
invested with plenipotentiary powers, sent an ultimatum 
to the Chilean Government, demanding satisfactory expla- 
nations, with a salute of 21 guns to the Spanish Hag, and 
intimating that if his demands wen 1 not complied with 

J Dip. Cor., 1865, II, 545-552. 

2 Dip. Cor., L865, II, 546-547,556,557. 


diplomatic relations would be broken off, and that, if his 
forces were called into action, he would claim indemnity 
for injuries sustained by the Spanish squadron in conse- 
quence of the decrees of the Chilean Government. This 
ultimatum, signed by the Spanish admiral, was received 
at Santiago on the L8th of September, during the celebration 
of the fifty-fifth aniversary of the birth of the Republic. 
It was immediately rejected. It was presented again by 
the admiral, and on the 23d of September was again re- 
jected. Next day Valparaiso was blockaded and a blockade 
was proclaimed of the other ports of the Republic. Chile 
responded by a declaration of war. The extended block- 
ade was not in fact maintained, since there were fifty-three 
ports, while the Spanish forces comprised only four frig- 
ates and two smaller vessels. October i!s. L865, Admiral 
Pareja reduced the blockade to six ports. 1 

Early in the contest the Chileans were greatly elated by 
the capture of the Spanish man-of-war Covadonga. This 
mishap caused deep mortification both to the Spanish navy 
and to the Government at Madrid. The Spanish force in 
Chilean waters was reenforced by two ships, which were 
withdrawn from Callao, notwithstanding the fact that in 
Peru, whose own dispute with Spain had seemed to be 
amicably adjusted, there had just taken place a sympa- 
thetic revolution which presaged an alliance with Chile. 1 
At the end of December. 1865, the death of Admiral 
Pareja on board his flagship was announced: the United 
States minister at Santiago reported that from what he 
could gather the admiral had committed suicide. His 
military operations had entirely failed: and it was gener- 
ally believed that a joint Chilean-Peruvian fleet, which 
was to include the Covadonga, was fitting outat the island 
of Chiloe. 

Admiral Pareja was succeeded in command by Senoi 
Castro Mendez Nunez, captain of the iron-clad Numancia, 
the most formidable of the Spanish ships. He reduced 
the blockade to the ports of Caldera and Valparaiso, and 
later to Valparaiso alone. In January. L866, news reached 
Chile of the conclusion of an alliance with Peru, and of 

1 Dip. Cor.. L866, II. 345, 349-362. -Dip. Cor.. L866, II, 364-365. 


the declaration of war by the latter. This alliance was 
joined by Ecuador and Bolivia. February 7 tin 1 Spanish 
tieet endeavored to engage that of Chile and Peru near the 
island of Chiloe, and was worsted. 

The first intimation of a possible bombardment of Val- 
paraiso was made by Admiral Pareja in October, I860, 
but nothing came of it. In February. 1866, his successor 
caused the Chilean Government to be advised that in the 
event of an attempt being made from the town to destroy 
his vessels with torpedoes he would instantly open tire 
upon it. 1 Personally Admiral Nunez seems to have been 
desirous of an amicable arrangement, and of avoiding such 
a measure of violence. About the middle of March, how- 
ever, he received a formal appointment as commander in 
chief and plenipotentiary, and this was accompanied with 
or was soon followed by instructions which left him no 
other alternative. General Kilpatrick. then United States 
minister to Chile, and Commodore John Rodgers, com- 
manding a special United States squadron at Valparaiso. 
Labored in vain to bring about a pacific adjustment. 
Admiral Nunez stated that the only terms which his 
instructions would permit him to accept were (1) a note 1 
disclaiming an intention to insult Spain, and declaring that 
the treat} 7 of peace was only interrupted, not broken, by 

'March.S, 1866, Admiral Dennian wrote to the Lords Commissioners 
of the Admiralty that he intended to use two of his ships to enforce 
twenty-four hours' delay before the Spanish squadron should open tire 
on Valparaiso, in the event of the use of torpedoes against the Spanish 
ships. (Br. & For. State Papers, LVI, 9.37. ) This intention the Lords 
considered " nottobe justified by any ruleof international law." April 
16, 1866, Lord Clarendon instructed the British minister in Chile that 
he had consulted the law offices of the crown on the subject, and that 
in the opinion of Her Majesty's Government the course which the 
Spanish admiral had declared he would pursue would, under the cir- 
cumstances stated, "be justifiable by international law." "Her 
Majesty's Government," said Lord Clarendon, "think it impossible 
to deny the belligerent right of Chile to employ torpedoes against the 
Spanish squadron: and equally impossible to deny the belligerent 
right of Spain to bombard the town which those instruments are 
employed to protect. In the opinion of Her Majesty's Government, 
however, it would be highly impolitic on the part of the Chilean 
Government to give cause to the Spanish commodore to put his threat 
into execution." (939.) 


the declaration of war. and in proof of this the return of 
the ( ovadonga, and all other prizes; ('2) a responsive 
declaration by Spain of a return of friendship, together with 
a discla: ner of any desire for conquest in America, or 
of exclusive influence in American Republics, and in proof 
of this the return of all prizes in the possession of the 
Spanish squadron; (3) after this exchange of notes, a 
reciprocal salute of 21 guns, the first gun to be tired from 
the Chilean forts, when, this accomplished, he would pro- 
ceed to Santiago and present his credentials as envoy 
extraordinary and minister plenipotentiary and enter 
into negotiations for a permanent settlement. If these 
terms were accepted by ChiJe. similar ones would he 
offered to her allies. 

Mr. Covarrubias, when advised of these terms, declined 
to act upon them without the concurrence of the repre- 
sentatives of tin* allies. This was construed as a rejection 
of them, and it seems correctly so. since not only was the 
minister of Peru then absent, hut Mr. Covarrubias, as will 
he seen, soon afterwards made a counter-proposal which 
was evidently not the result of mutual consultation. 

On the morning of March "27 Admiral Nunez notified 
the diplomatic corps, the dean of the consular body at 
Valparaiso, and the intendente of the city that he would 
open his batteries on Saturday morning-, the Hist of the 
month, thus allowing four days to noncombatants for 
removing- with their effects, and that he would endeavor 
to injure only public property, but that if private prop- 
erty should be destroyed he could only place the entire 
responsibility on Chile. In a manifesto he stated that two 
ineffectual attempts -had been made to engage the allied 
Meets in the waters of Chiloe. where they were protected 
by narrow passages and natural bulwarks of rock, so that 
vessels of the class of the Spanish squadron could not 
attack them. "The impossibility," he declared, "of get- 
ting within gunshot of vessels which shelter themselves 
behind the impassable barriers of locality, and the per- 
sistence of Chile in refusing the amends justly demanded 
of her. impose upon Spain the painful but unavoidable 
duty of making her feel all the weight of rigor to which 
that country exposes itself which absolutely refuses to 


recognize the duties imposed upon the civilized communi- 
ties of the universe." 

The foreign residents of various nationalities addressed 
petitions and sent deputations to the foreign ministers and 
to the commanders of the foreign naval forces, praying 
for protection against the bombardment. Gen. Kilpatrick 
convoked a meeting of the diplomatic corps, but only the 
representatives of Italy and Prussia appeared; and it was 
decided that it was inexpedient for the American naval 
forces to make any physical opposition, in view of the 
course of the ministers of England and France. "Had 
those representatives." sa} 7 s Gen. Kilpatrick. "asked 
that our forces cooperate with those of England to that 
end. and thus given us moral support in our contemplated 
action, neither Commodore Rodgers nor myself would 
have hesitated to have used force to prevent the destruc- 
tion of this city." 

All the consular body, except the representatives of the 
Argentine Republic. Belgium, England, and France, joined 
in a protest to Admiral Nunez. "In the face of the civi- 
lized world, against the consummation of an act which 
is inconsistent with the civilization of the age." The 
consuls of England. France, and the Argentine Republic 
made a joint and similar protest. The Belgian consul pro- 
tested separately. 

General Kilpatrick. in a written communication to 
Admiral Nunez, said: "While belligerent rights permit 
a recourse to extreme measures for the carrying out of 
legitimate military operations, they do not include the 
wanton destruction of private property where no result 
advantageous to the lawful ends of the war can be attained. 
International law expressly exempts from destruction 
purely commercial communities, such as Valparaiso, and 
the undersigned would beg his excellency to consider most 
earnestly the immense loss to neutral residents, and the 
impossibility of removing within the brief term alloted to 
them their household goods, chatties, and merchandise. 
If. however, his excellency persists in his intention 
* * * it only remains for the undersigned to reiterate 
in the clearest manner, in the name of his Government. 
Lis most solemn protest against the act as unusual and 


unnecessary, and in contravention of the laws and customs 
of civilized nations: reserving to his Government the right 
to take such action as it may deem proper in the prem- 
ises. v ' 

The British minister. Mr. Thomson, in a similar protest, 
drew attention to the large neutral interests at stake 
and the impossibility of withdrawing them in four days, 
and to the futility of the proposed measure from a military 
point of view. and. reserving all the rights of his Govern- 
ment in the premises, he declared: **In attacking an open 
and undefended town an act will be committed against 
the laws and usages of war. against the rules established 
by international law. and against the laws of humanity."" 

The diplomatic representatives of France, Italy, and 
Prussia also protested. 8 

O/i the morning of March l >( -' General Kilpatrick advised 
Mr. Covarrubias that Admiral Nunez was disposed to say 
to the intendente of Valparaiso that, inasmuch as it was ;i 
purely commercial and unfortified port, the magnanimity 
of Spain would not permit its destruction if Chile, in reply, 
would state that she yielded to magnanimity what she 
refused to yield to force. Mr. Covarrubias answered by 
proposing that, as Adm. Nunez had given as a reason for 
the bombardment that he could not meet the vessels of 
the allies, their squadron should be placed 10 miles from 
Valparaiso, there to engage an equal force from the Span- 
ish fleet (the Numanoia being excluded), Commodore Kodg- 
ers to match the ships and act as umpire. Admiral Nunez 
declined this proposal, saving that as a military man ho 
knew the superiority of his forces and should of course 
avail himself of it. ; 

On the morning of March 31 the bombardment took 
place, lasting three hours. The shots were chiefly directed 
at the public buildings- the bonded warehouses, the inten- 
dencia, and the railway station. Four of the warehouse - 
were destroyed, containing neutral property valued at 
110,000,000. White Hags were at the Admiral's request 

1 Dip. Cor., 1866, II, 402. 

- Br. ct For. State Papers, LVI, 966. 

:; Dip. Cor., 1866, [I, 386-393. 

1 Dip. Cor., L866, II. 391, 392, 404-4iio. 


placed on the hospitals and churches, but some of these 
were struck. A part of the streets Planhada and Cocharne. 
extending from the intendencia toward the customs stores, 
was destroyed by lire, and some twenty-live private 
dwellings were consumed. The total loss was estimated 
at S15.o00j«)0. less than 5 per cent of which fell on 
Chileans. Two or three persons were killed and as many 
wounded. 1 

Mr. Seward, in acknowledging General Kilpatrick's 
dispatches, said: "The conclusion at which you ar- 
rived . . . that it was not your duty to advise and instruct 
Commodore Rodgers to resist the bombardment by force 
is accepted and approved." 2 Subsequently Mr. Seward, 
in a letter to the Attorney-General, expressed the opinion 
that citizens of the United States domiciled in Valparaiso 
would have 1.0 claim for indemnity either against Spain or 
against Chile, 3 and the Attorney-General gave to this view 
his sanction. 4 

Mr. Welles, Secretary of the Navy, in his annual report 
of Dec. 3, 1866, stated that Commodore Rodgers "was not 
required to interpose his force against or for either party;" 
that it was "his duty, even while endeavoring to mitigate 
the harsh severities of war, to maintain a strict neutrality:** 
and that, "the officers of other neutral powers having de- 
clined to unite in any decided steps to protect the city, no 
alternative remained for him to pursue consistently with 
the position of this Government towards the parties than 
that which he adopted." 5 

Lord Clarendon, on hearing of the bombardment, de- 
scribed it in a communication designed for the Spanish 
Government as "a wanton destruction unparalleled in 
modern times and unjustifiable on any grounds of a vast 
amo mt of neutral property stored up in the magazines of 
a defenceless town, without any material damage to the 

1 Dip. Cor., 1866, II, 386-393; Br. & For. State Papers, LVI, 971. For 
a circular of Mr. Covarrubias of April 1, 1866, on the bombardment. 
see Dip. Cor., 1866, II, 421. 

2 Dip. Cor., 1866, II 411-412. 

3 Aug. 24, 1866, 74 MS. Dom. Let., 64. 
1 12 Op., 21. » 

5 Messages and Documents, 186(>-'67, Abridgement, 703. 

6482—01 3 


enemies of Spain, but with most disastrous consequences 
for those whom Spain professes to regard as friends." It 

appears, however, that Admiral Denman had been in- 
structed " not to transgress the limits permissible to the 
representative of a neutral power, or to associate himself 
with any proceedings of the United States commodore 
whieh might be inconsistent with the neutral character."* 1 

The opinion of publicists is expressed by Hall, who de- 
clares that " the act gave rise to universal indignation at 
the time, and has never been defended/' 2 

The bombardment practically ended hostilities in Chile; 
but, to the great inconvenience of neutral powers and par- 
ticularly of the United States, it effectually blocked the 
way to the conclusion of a peace. 3 At length, after re- 
peated efforts nt mediation, a conference between repre- 
sentatives of Spain and the allies was opened at Washing- 
ington Oct. 29, 1870, under the presidency of Mr. Fish. 
April 11, 1871, an armistice was concluded whereby the 
de facto suspension of hostilities was converted into an in- 
definite truce, which was not to be broken by any of the 
belligerents except on three years' notice, given through 
the Government of the United States: and so long as the 
truce lasted all restrictions on neutral commerce were to 
cease. The last session of the conference took place Jan- 
uary 24. \s~rl. Mr. Fish renewed his entreaties for a per- 
manent peace. The Spanish minister declared this to be the 
desire of his Government. The Chilean minister, with the 
support of the ministers of Peru and Ecuador, replied that 
peace would be made if Spain would " remove the obstacle" 
by making reparation for the bombardment of Valparaiso. 
The Spanish minister declined to (Miter into a discussion 
which could produce "no beneficial result." At this an- 
nouncement Mr. Fish expressed his disappointment, de- 
claring that the United States had hoped that, in view of 
the great changes which had taken place in the executive 
Government of Spain, "the present sovereign 

* * 

1 Br. and For. State Tapers. LVi. 942,053-954, 987. 

' Int. Law. 4th ed., 556. See Calvo, Droit Int., 5th ed., VI, § 428. 

s Military necessity ''does not permit * * * the doing of any 
In .stile act that would make the return of peace unnecessarily difficult." 
(Stockton, Naval War Code, art. 3.) 


might not be held morally accountable for the severe act of 
his predecessor in the assault on Valparaiso, but might 
satisfy the natural sensitiveness of Chile by expressing 
regret that the Government of Isabel II had omitted to 
offer Chile satisfactory explanations on that subject." 

Nearly twenty years elapsed before treaties were made 
by Spain with Peru and Bolivia, the first of the allies with 
which she was able to conclude a formal peace. 1 

British-French discussions. — A discussion of the subject 
of coast warfare was started in 1882 b} r Admiral Aube, of 
the French navy, who, in an article against the proposed 
discontinuance of Rochefort as a military port, argued 
that as '* wealth is the sinews of war, all that strikes at the 
wealth of the enemy, a fortiori all that strikes at the 
sources of his wealth, becomes not only legitimate but 
imposes itself as obligatory. It must therefore be expected 
to see the fleets, mistresses of the sea, turn their power of 
attack and destruction, instead of letting the enemy escape 
from their blows, against all the cities of the coast, forti- 
fied or not, peaceful or warlike, to burn them, to ruin 
them, and at least ransom them without mercy. This was 
the former practice; it ceased; it will prevail again/' 2 
Similar views were expressed by other French writers. 3 
Contrary opinions were maintained by Admiral Bourgois, 
who deprecated any suggestion of repudiating "the prin- 
ciples of the law of nations which protect inoffensive citi- 
zens, noncombatants, and open and undefended towns 
against the horrors of war." 4 

The effect of these discussions was reflected in the British 
naval manoeuvres of July and August, 1888, in which the 
enemy's fleet shelled "fine marine residences and watering 
places" and levied ransoms on undefended towns. 5 These 

1 Moore, Int. Arbitrations, V, 5048-5056. 

2 Revue des Deux Mondes, L, 314, March 15, 1882. 

3 M. Etienne Lamy, Revue des Deux Mondes, LIII, 320, Sept. 15, 
1882; M. Gabriel Charmes, "LaReforme Maritime," Revue des Deux 
Mondes, LXVI, LXYIII, Dec. 15, 1884, March 1,1885, April 15,1885. 

4 " Les Torpilles et Le Droit des (Tens," La Nouvelle Revue, April 
1, 1886; "La Defense des Cotes et Les Torpilles," Dec. 1, 1887, and 
Feb. 1, 1888. In the same publication, June 1, 1886, there is a reply 
to Admiral Bourgois' first article by "Un ancien officier de marine." 

5 The Times, Aug. 7, 18SS. 


proceedings were objected to by Mr. Holland, on the 
ground that they might he cited as giving an implied sanc- 
tion to such a mode of hostilities. 1 They were also con- 
demned by Hall, who declared that "the plea * * * 
that every means is Legitimate which drives an enemy to 
submission * * * would cover cwvy barbarity that 
disgraced the wars of the seventeenth century;" that the 
proposal to revive in maritime hostilities a practice which 
had been "abandoned as brutal in hostilities on land" was 
"nothing short of astounding;" hut that, before such things 
were done, "states are likely to reflect that reprisals may 
be made, and that reprisals need not be confined to acts 
identical with those which have called them forth." 2 

Chilean Revolution, 1891. — January L6, L891, during the 
contest between the government of Balmacedo and the 
Congressionalists, two forts at Valparaiso tired on the 
Congressionalist man-of-war Blanco Encalada, killing and 
wounding a number of persons on board. The attack 
"was not returned for reasons of humanity towards the 
people and the town." 3 

February 16. 1891, a report having reached Iquique that 
the government troops had been defeated on the pampas 
near that place, the intendente surrendered the town to the 
Congressionalists, who occupied it with their naval forces. 
Early in the morning of February L9, government troops 
about 250 strong surprised the city, and the marines retired 
into the custom house, where they were supported by the 
squadron. Firing continued all day, and two fires broke 
out. Late in the afternoon a British naval officer, at the 
request of the revolutionary leaders on the Blanco Enca- 
lada, went ashore under a flag of truce, and arranged a 
suspension of arms to enable foreigners and non-combat- 
ants to leave the town. But for this, said the 4 British 
admiral. Ilotham. "Iquique would have disappeared, and 
with 250 drunken ('hi lean soldiers, no discipline nor police, 
and supplemented by roughs, the sufferings, and worse, 

l Studies in Int. Law, !»(> el seq. 

2 Int. Law, 4th ed., 556. 
Line-book, Chile, No. 1 (1892), 24. This abstention on the part of 
the Congressionalists is said to have been due to the influence of Cap- 
tain St. Clair, of II. M. S. Champion. ( LI. 83.) 


of non-combatants, especially women and children, may 
be imagined." 1 

March 26, 1891, Mr. Tracy, Secretary of Navy, ad- 
dressed to Rear- Admiral Brown instructions in relation 
to the protection of American interests in Chile during 
the revolution then going on. With reference to the fleet 
of the Congressionalist party, whose belligerency had not 
been recognized b}* the United Stales. Mr. Tracy said: 

"Should the bombardment of any place, by which the 
lives or property of Americans may be endangered, be 
attempted or threatened by such ships, you will, if and 
when your force is sufficient for the purpose, require 
them to refrain from bombarding the place until sufficient 
time has been allowed for placing American life and 
property in safety. You will enforce this demand if it is 
refused, and if it is granted, proceed to give effect to the 
the measures necessary for the security of such life or 
property." 2 

July 27, 1891, Mr. Kennedy, British minister at Santi- 
ago, inclosed to Lord Salisbury a correspondence relating 
to the then recent bombardment of the town of Pisagua 
without provocation or notice of any kind by the Chilean 
Government ships Al/mirante Condel and Imperial, on 
June 8, 1891. Among the inclosures there was a protest 
of the consular body at Pisagua, which stated that the 
vessels came close into the port about 2 o'clock in the 
afternoon, and without notice of any kind began to lire 
their guns into the town, causing much damage. On July 
7th Mr. Kennedy addressed a protest to the Chilean Gov- 
ernment characterizing the proceeding as being "opposed 
to the recognized principles of international law or of 
civil warfare." He also reserved all rights of British 
subjects as to property destroyed. 

August 25, 1891, Mr. Kennedy's protest was approved 
by Lord Salisbury. ; 

Rules of tJif Institute of International Law, 1896. — The 
question of the bombardment of open towns by naval forces 

1 Blue-book, Chile, No. 1 (1892), 82-83. 
2 H. Ex. Doc. 91, 52 Cong. 1 sess., 245. 

3 BlueBook, Chile No. 1 (1892), 198, 218. See Calvo, Droit Int., 
5th ed., VI, § 428 et seq. 


was considered by the Institute of International Law at 
Cambridge in L895, and at Venice in L896. At the Latter 
session rules were adopted which were designed to supple- 
ment, in regard to this question, the Manual of the Laws 
of War previously resolved upon at the session at Oxford. 
The rules, which were adopted September 29, 1896, were 
■d< follows: l 

•"Art. 1. There is no difference between the rules of the 
law of war as to bombardment by military forces on land 
and that by naval force-. 

"Akt. '2. Consequently there apply to the latter the gen- 
eral principles enunciated in art. o'2 of the Manual of the 
Institute — i. e., it is forbidden (a) to destroy public or pri- 
vate property, if such destruction is not commanded by 
the imperious necessity of war; (/>) to attack and bombard 
localities which are not defended. 

"Art. 3. The rules enunciated in arts. 33 and 34 2 of the 
Manual are equally applicable to naval bombardments. 

"Art. 4. In virtue of the foregoing principles, the 
bombardment by a naval force of an open town — i. e., one 
not defended by fortifications or other means of attack or 
of resistance for immediate defense, or by detached forts 
situated in proximity to it. for example, at the maximum 
distance of from I to 10 kil.. is inadmissible, except in the 
following cases: 

"(1) In order to obtain by means of requisitions or of 
contributions what is necessary for the fleet. 

" Nevertheless, such requisitions and contributions must 
remain within the bounds prescribed by arts. 56 and 58 3 
of the Manual of the Institute. 

l Annuaire, XV. 213. 

-:;:;. hi case of bombardment all needful measures shall be taken to 
spare, if it be possible to do s<>. buildings devoted to religiou and 
charity, to the arts and sciences, hospitals, and depots of sick and 
wounded. This on condition, however, that such places he not made 
use of, directly or indirectly, for purposes of defence. 

34. It is the duty of the besieged to designate such buildings by 
suitable marks or si<xns. indicated, in advance, to the besieger. 

•56. Impositions in kind (requisitions), levied upon communes, or 
the residents of invaded districts, should bear direct relation to the 
generally recognized necessities of war, and should be in proportion 
to the resources of the district. Requisitions can only be made, or 


"(2) In order to destroy dockyards, military establish- 
ments, depots of munitions of war, or vessels of war found 
in a port. 

"Moreover, an open town which is defended against the 
entrance of troops or of disembarked marines may be 
bombarded in order to protect the landing of soldiers and 
of marines if the open town attempts to prevent it, and as 
an auxiliary measure of war in order to facilitate an 
assault made by the troops and disembarked marines, if 
the town defends itself. 

"There are special]} 7 forbidden bombardments whose sole 
object is to exact a ransom (Brandschatz), and, with 
greater reason, those destined only to induce the sub- 
mission of the country by the destruction, without other 
motive, of peaceable inhabitants or their property. 

"Art. 5. An open town may not be exposed to bom- 
bardment by the sole fact: 

"(1) That it is the capital of a State or the seat of Gov- 
ment (but, naturally, these circumstances give it no guar- 
antee against bombardment). 

"(2) That it is actually occupied b} r troops, or that it is 
ordinaril} T garrisoned by troops of various arms, destined 
to rejoin the army in time of war." 

levied, with the authority of the commanding officer of the occupied 

58. The invader can not levy extraordinary contributions of money, 
save as an equivalent for fines, or imports not paid, or for payments 
not made in kind. Contributions. in money can only be imposed by 
the order, and upon the responsibility, of the general in chief, or that 
of the superior civil authority established in the occupied territory; 
and then, as nearly as possible, in accordance with the rule of appor- 
tionment and assessment of existing imposts. 


Sulphur, which is obtained chiefly from Sicily, is used 
in the manufacture of powder; it is also used, very largely, 
in the manufacture of paper from wood pulp and in other 

mechanical arts. On the understanding that it may. 
because of the former use. be treated as contraband, the 
Sicilian merchants, in the case of war between the United 
States and another power, cease to send it to the United 
States ports, but ship i»- by Italian vessels to merchants in 
Quebec, from whom the American manufacturers of pow- 
der as well as of othei articles, obtain their supplies, by 

Should the vessel in question be seized? 


" The tendency of all recent authorities * * * goes 

to show that contraband or not contraband of war is a 
question of evidence to be determined in each case by ref- 
erence, not to one particular rule of law, but many: not 
to any one fact, however strong that may be, but to all 
the circumstances connected with the goods in question. 
It is not only, or not so much, whether the goods are 
* * :: " capable of being applied to military or naval use, 
but whether, from all the circumstances connected with 
them, those very o-oods are or are not destined for such 
use." 1 

We must, therefore, consider (l)the nature of the goods; 
(2) their origin and ownership; (3) their destination. 

1. Nature of the goods. — According to the usual classifi- 
cation, derived from Grotius, articles of merchandise are 
divided with reference to the question of contraband as 

1. Those manufactured and primarily and ordinarily 
used for military purposes in time of war. 

% J. Those th it may be and are used for purposes of war 
or of peace, according to circumstances. 

l Moseley <>n Contraband of War, 9. 


3. Those exclusively used for peaceful purposes. 

** Merchandise of the first class, destined to a belligerent 
country or places occupied by the army or navy of a bel- 
ligerent, is always contraband: merchandise of the second 
class is contraband only when actually destined to the 
military or naval use of a belligerent, while merchandise 
of the third class is not contraband at all, though liable to 
seizure and condemnation for violation of blockade or 
seige." 1 

With respect to sulphur and saltpetre, " there is much 
difficult3 r in deciding whether they come within the defini- 
tion of ammunition, so as to render them liable, in the 
first degree, as to all the consequences of such. * * * 
As things clearly of a doubtful or double use, however 
much the} T may be required for and specially adapted for 
war, it is, no doubt, better to consider them as of the sec- 
ond class of contraband where no treaty exists, and to 
render them liable to confiscation, to require some other 
proof, which for such goods need not be very strong, of a 
warlike destination.'* 2 

In this relation is to be observed that the importance of 
sulphur, as an element entering into explosives, has lately 
declined, while its use in the arts has become more extensive. 

In the Instructions to Blockading Vessels and Cruisers, 
issued by the Navy Department during the war with Spain, 
certain articles are classed as "absolutely contraband" and 
certain others as "conditionally contraband." Among 
the former is included saltpetre, but sulphur is omitted 
from both lists, and apparently intentionally so. Nor is 
it included' among contraband articles, either absolute or 
conditional, in the present Naval War Code. 

In the royal decree of Spain, of April 23, 1898„ sulphur 
was included in tin 1 list of contraband; but it appears that 
the Spanish Government, upon the request of the Italian 
Government, afterwards announced its suspension from 
that category. 

2. Origin and ownershijj. — Special consideration has 
been shown in times past to the natural produce of a neu- 
tral country, shipped by and belonging to its nationals. 

1 Chase, C. J., in the case of The Peterlwff, 5 Wallace, 28, 58. 

2 Moseley, 47, 48. 


This consideration is founded on the principle "that the 
people of such a country are not needlessly to be deprived 

of a fair and usual market for their produce:" and "so 
strong is the rule that, even though it |the produce] he of 
tin 1 nature of contraband in the first degree, in some few 
specified instances it will he protected." And still more 
strongly will favorable consideration be justified in respect 
of articles of a "less degree of contraband." 1 

3. Destination. -In various cases that arose during the 
civil war. it was held by the courts of the United States 
that goods, although they might he proceeding to a neutral 
port, were liable to seizure and confiscation as contraband, 
or for breach of blockade, as the case might be, if they 
were, at the time of capture, in reality intended, not to be 
delivered and sold in the neutral market, hut to he con- 
tinuously carried on from their colorable destination, by 
the same or another vessel, or by means of inland transit. 
to the enemy. These decisions were acquiesced in by the 
British Government as being in harmony with the prece- 
dents in its prize courts. On the other hand, the 
American courts repeatedly declared that the goods, if 
honafide intended for sale in the neutral market, were not 
subject to capture. 8 

Of the belligerent destination, where a *" continuous 
voyage" is alleged, there should he some definite evidence. 
It has been said that the evidence must he "full and clear:*' 
hut, in determining what evidence may satisfy this require- 
ment, it may he proper to hear in mind the doctrine laid 
down by the same writer, that "in the administration of 
all law. international as well as municipal, realities and not 
shams are to he regarded." 3 Hut. •'there seems to he hut 
little question that the evidence as to the destination of 
the cargo should be definite. A mere presumption should 
not he sufficient." l 

Conclusion. — Since sulphur may be considered as only 
conditionally contraband, and since it is. in the case stated, 
the natural produce of the country from which it is shipped, 
and is consigned to merchants in a neutral port, the pre- 

l Moeeley, Ll-15. 

the Introduction to Lushington'e Manual of Naval Prize La'w. 
easy, First Platform of International Law. 624, <>lM. 
low, Jnt. La-v. L57. 


sumption is in favor of the innocent character of the cargo. 
But if there is reasonable ground to believe that it is not 
to be sold in the neutral market, but that it has been pur- 
chased on American account and is to be reshipped to the 
United States and there used for warlike purposes, the 
vessel should be seized. The evidence on these points, 
whether such evidence be found in statements or in defects 
in the papers, or in the testimony of persons on board, 
should be substantial, though not necessarily conclusive, 
to justify the capture. 

Due regard must of course be paid to any existing treaty 


I. Spain s action as to sulphur. — April 29, 1898, the 
Italian ambassador at Madrid was orally advised that 
instructions had been issued to Spanish naval officers 
temporarily to suspend, in regard to sulphur, the applica- 
tion of the ro} T al decree of April 23, concerning contra- 
band of war. This resolution was confirmed by a note of 
May 31, 1898, the Spanish Government reserving the 
right to restore sulphur to the contraband list, should its 
interests require it, but promising not to do so without 
sufficient notice, so that pending contracts might be per- 
formed. The Italian ambassador replied June 3, 1898, 
accepting the notification of Spain's resolution, but ex- 
pressly reserving the question of principle. It was under- 
stood to be the opinion of the Italian Government that 
sulphur could not properh r be considered as contraband of 
war, since it was used in many innocent arts and had ceased 
to be an ingredient of the higher class of gunpowders. 1 

June 8, 1898, there appeared in the official Imperial 
Gazette, at Berlin, an announcement that the Spanish 
ambassador had informed the German Government that 
sulphur, which had been included in the royal decree of 
April 23 as contraband of war, was no longei to be so 
considered. 2 

-Mr. Draper, United States ambassador at Rome, to Mr. Day, Sec- 
tary of State, June 9, 1898; Mr. Iddings United States charge d'af- 
fairs ad int. at Rome, to Mr. Day, July 16, 1898. (MSS. Department of 
State. ) 

2 Mr. White, United States ambassador, to Mr. Day, June 11, 1898. 
(MSS. Department of State. ) 


II. Decisions of the United States courts, 'during the 
•// wa/r, as to th< question of "continuous voyages" — 
Early in the war the Confederate Government, win 

port- were blockaded by the United States, sent abroad 
agents for the purpose, among others, of obtaining arms 
and munitions of war and other needful supplies, as well 
as vessels to transport them, the means of payment to be 
derived chiefly from the proceeds of the Southern cotton 
crop. To carry out this plan a firm under the name of 
Frazer,Trenholm&Co., composed of merchants of Charles- 
ton, South Carolina, and constituting a branch of a house 
in that city, was established in Liverpool. Consignments 
of cotton were made to this firm, to he drawn against for 
purchases for the Confederacy. 1 In this way a vast sys- 
tem of blockade running was soon built up, under cover 
of the neutral flag, hut under actual Confederate super- 
vision and control. Commander Bulloch. C. S. N.. writing 
at Liverpool. May 3, 1802, to Mr. Mason, Confederate 
commissioner in London, stated that he had read to Messrs. 
Frazer, Trenholm Si Co. a part of one of Mr. Mason's let- 
ters, and added: "These gentlemen say that their ships 
are necessarily sailed under the British flag, and the pres- 
ence on hoard of any persons known to have been in the 
Confederate service would compromise their character, 
and in this view of the case they feel reluctantly compelled 
to decline giving a passage to any of the Sumter's men." 8 

A- the system of blockade running grew in notoriety 
it became more difficult of execution, and Confederate 
agents were established in the various West India islands 
to facilitate its operations: and, instead of direct voyages 
to blockaded ports, goods were shipped in British bottoms 
to neutral ports and there transshipped into steamers of 
light draft and great speed, which could carry coal enough 
for the short passage to Charleston. Savannah, or Wil- 
mington. Of the neutral ports thus used. Nassau, in the 
island of New Providence, acquired the greatest celebrity/' 

duly 5, 1862, Mr. A. H. Layard. by direction of Karl 
Russell, addressed a letter to certain British merchants 

1 Moore, Int. Arbitrations, I. 580. 

■Official Records of the Union and Confederate- Navies, Ser. I, vol. 1, 
}». 770. 
:; Int. Arbitrations, I. 581. 


and shipowners of Liverpool in reply to a memorial in 
which they invoked the protection of the British Govern- 
ment against "the hostile attitude assumed by Federal 
cruisers in the Bahama waters," so as to put a check on 
the seizures f requenth T made therein. Earl Russell, in his 
reply, stated that complaint had, on the other hand, been 
made on the part of the United States that ships had been 
sent out from Great Britain to America "with a fixed 
purpose to run the blockade; that high premiums of insu- 
rance have been paid with this view, and that arms and 
ammunition have been thus conveyed to the Southern 
States to enable them to carry on the war. Lord Rus- 
sell," so the letter continues, "was unable either to deny 
the truth of those allegations or to prosecute to convic- 
tion the parties engaged in those transactions. But he 
can not be suprised that the cruisers of the United States 
should watch with vigilance a port which is said to be the 
great entrepot of this commerce. 

"Her Majesty's Government have no reason to doubt 
the equity and adherence to legal requirements of the 
United States prize courts. But he is aware that many 
vessels are subject to harsh treatment, and that, if cap- 
tured, the loss to the merchant is far from being compen- 
sated even b\ T a favorable decision in a prize court. 

ci The true remedy would be that the merchants and 
shipowners of Liverpool should refrain from this species 
of trade. It exposes innocent commerce to vexatious 
detention and search by American cruisers; it produces 
irritation and ill will on the part of the population of the 
Northern States of America; it is contrary to the spirit of 
Her Majesty's proclamation, and it exposes the British 
name to suspicions of bad faith, to which neither Her 
Majesty's Government nor the great body of the nation 
are justly obnoxious. 

"It is true, indeed, that supplies of arms and ammuni- 
tion have been sent to the Federals equally in contraven- 
tion of that neutrality which Her Majesty has proclaimed. 
It is true, also, that the Federals obtain more freely and 
more easily that of which the} r stand in need. But if the 
Confederates had the command of the sea they would no 
doubt watch as vigilantly and capture as readily British 
vessels going to New York as the Federals now watch 


Charleston and capture vessels seeking to break the 

"There can be no doubt that the watchfulness exercised 
by Federal cruisers to prevent supplies reaching the Con- 
federates by sea will occasionally lead to vexatious visits 
of merchant ships not engaged in any pursuit to which 
tin 1 Federals can properly object. This, however, is an 
evil to which war on the ocean is liable to expose neutral 
commerce, and Her Majesty's Government have done all 
they can fairly do — that is to say. they have urged the 
Federal Government to enjoin upon their naval officers 
greater caution in the exercise of their belligerent rights. 

u Her Majesty's Government having represented to the 
United States Government every case in which they were 
justified in interfering, have only further to observe that 
it is the duty of Her Majesty's subjects to conform to Her 
Majesty's proclamation, and to abstain from furnishing 
to either of the belligerent parties any of the means of 
war which are prohibited to be furnished by that 
proclamation." 1 

Early in August. 1862, Mr. Stuart, British charge d' 
affaires ad interim, represented to Mr. Seward, on the 
strength of information received from British naval offi- 
cers, that a British steamer had been chased and fired on 
by a United States cruiser without display of her colors, 
and had then been captured without any search, and that 
the senior United States naval officer present had declared 
that the American cruisers had orders to seize any British 
vessels whose names had been forwarded to them from the 
Government at Washington. Mr. Stuart protested against 
these instructions as being "entirely at variance with the 
recognized principles of international law." On the 9th 
of August Mr. Seward communicated to Mr. Stuart a copy 
of a letter which he had addressed on the preceding day 
to Mr. Welles. Secretary of the Navy, conveying the -direc- 
tion of the President that certain instructions, which were 
set forth in the letter, should be issued to naval officers.' 
Instructions were issued by Mr. Welles August 18. 1862. 
They embodied the substance of Mr. Seward's draft with 
' ertain amendments. They contained the following clauses: 

1 Dip. Cor., L862, 171. 

'Blue Book, North America, No. 5 (ls»).'>j 


"'First. That you will exercise constant vigilance to 
prevent .supplies of arms, munitions, and contraband of 
war from being conveyed to the insurgents, but that under 
no circumstances will } r ou seize any vessel within the waters 
of a friendly nation. 

" Secondly. That, while diligently exercising the right 
of visitation on all suspected vessels, you are in no case 
authorized to chase and fire at a foreign vessel without 
showing } T our colors and giving her the customary pre- 
liminary notice of a desire to speak and visit her. 

"Thirdly. That when that visit is made the vessel is not 
then to be seized without a search carefully made, so far 
as to render it reasonable to believe that she is engaged in 
carr} T ing contraband of war for or to the insurgents, and 
to their ports directlv or indirectly by transshipment, or 
otherwise violating the blockade; and that if, after visita- 
tion and search, it shall appeal- to your satisfaction that 
she is in good faith and without contraband, actually 
bound and passing from one friendly or so-called neutral 
port to another, and not bound or proceeding to or from a 
port in the possession of the insurgents, then she can not 
be lawfully seized. * * * 

"You are specially informed that the fact that a suspi- 
cious vessel has been indicated to you as cruising in any 
limit which has been prescribed by this Department does 
not in any way authorize you to depart from the practice 
of rules of visitation, search, and capture prescribed by 
the law of nations." l 

Diligent watch was kept by the United States consuls in 
English ports for vessels believed to be engaged in contra- 
band and blockade-running ventures. December 30, 1862, 
Mr. Adams, United States minister at London, communi- 
cated to Earl Russell two lists, respectively furnished by 
the consuls at Liverpool and London, of vessels which, as 
Mr. Adams said, were believed to have "left with supplies, 
principally contraband of war, with the intention of either 
running the blockade directly or of going to a neighboring 
Atlantic or Gulf port and there 1 discharging their cargoes 
into another class of vessels, the more easily to get such 
cargoes to their places of destination." In these lists, 
which contained the names of 82 vessels, were the steam- 
ers Bermuda, Circassian, Gertrude, Lahuan, Pearl* and 

1 Official Records of the Union and Confederate Navies, Sit. I, vol. 
1, p. 417. 


Peterhoff) and the sailing vessels Springbok and Stephen 
HarV " 

Cis, oftJu Dolphin,— The first judicial application dur- 
ing the civil war of the doctrine of continuous voyages 
was made by Judge Marvin, of the district court of the 
United States for the southern district of Florida, in tin 4 
case of the Dolphin, a steamer of L29 tons net, of apparent 
British ownership. She was captured March 25, 1863, at 
5.15 o'clock a. in., by Lieut. Commander Fleming, of the 
U. S. S. Wachusett, between the islands of Culebra and 
Porto Rico, while ostensibly on a voyage from Liverpool 
to Nassau.' The I)<>lf>/iiii left St. Thomas just after mid- 
night on March -2~>. The Wachusett followed her but lost 
her in the night; descried her again at daylight, and cap- 
tured her after an hour and a half's chase and the firing of 
a number of shots. In his first brief report, March 25, 
Commander Fleming said: *" Suspicion being strong against 
her I seized her." In a further report, of March 28, he said 
that the report of the boarding officer. ** together with an 
examination I had of her papers, and the strong suspicion 
attached to her of intending to run the blockade, induced 
me to capture her and to send her to Key West. 5 

When sent before the prize court, the vessel and cargo 
were claimed by one Grazebrook, of Liverpool, to whose 
order the bills of lading consigned the cargo, while the 
freight bill consigned it to Messrs. Chambers & Raw, of 
Nassau. It corresponded to the freight list found on 
board, except as to certain cases containing in all 920 
rifles and 2,240 cavalry swords, which were described as 
•• hardware." 

Judge Marvin said that if the vessel and cargo were 
owned as claimed and "there was no intention on the part 
of the owner that the vessel should proceed with the cargo 
to a port of the enemy" there would be no justification 
for the capture or condemnation of either; but that "if, 
on the other hand, it was the intention of the owner that 
the vessel should simply touch at Nassau and should pro- 
ceed thence to ( lharleston or some other port of the enemy, 
then the voyage was not a voyage prosecuted by a neutral 

^lue Book, North America, No. 3 (1863), 29, 34, 35. 

2 The Dolphin (.May, L863), 7 Vv<\. Cases, 868. 

3 Official Records of t he Union and ( !onfederate Navies. Ser. I, vol. 2, 
]>!>. L35, 136. The Dolphin was "on the list," and had been under 
observation for several days. (Id., 131.) 


from one neutral port to another, but was a voyage to a 
port of the enemy, begun and carried on in violation of 
the belligerent rights of the United States to blockade the 
enemy's ports and prevent the introduction of munitions 
of war. . . . The cutting up of a continuous voyage into 
several parts ))y the intervention or proposed intervention 
of several intermediate ports may render it the more dif- 
ficult for cruisers and prize courts to determine where the 
ultimate terminus is intended to be, but it can not make a 
voyage which in its nature is one to become two or more 
voyages, nor make any of the parts of one entire voyage 
to become legal which would be illegal if not so divided." 

The master and some of the crew swore that Nassau was 
the terminus of the voyage 4 . Three letters, however, were 
found on board, all signed by Grazebrook. Oik 1 of them, 
addressed to Chambers & Raw, suggested that if the mar- 
ket at Nassau was "overdone from New York and the 
States." or if the "French charter" for "army stores, 
rum. etc.," had fallen through, a "tine trade" might be 
done "between Nassau and Boston and New York," and a 
"return cargo" of coal might be brought from Prince 1 
Edward Island for blockade runners: or perhaps the 
steamer might Ik 1 sold, but not for any of "your Federal 
or Confederate paper." but only for "hard cash." An- 
other letter, addressed to the master, was of similar pur- 
port. The third, which evidently was not intended to be 
shown to visiting cruisers, and the contents of which were 1 
unknown to the master, was addressed to Chambers & 
Raw. It canceled the prior instructions, which were 1 said 
to have been given "for a certain reason;" declared that 
the vessel "of course" was "not to be sold to anyone;" 
stated that **a power of attorney, for certain purposes." 
would be sent to the firm by the next mail, and expressed 
the hope that they would "be able to get some more goods 
on. instead of taking any off, and at good rates." 

Commenting upon the evidence. Judge Marvin ob- 
served — 

1. That Nassau furnished no market for such a cargo as 
that of the Dolphin. "It is." he said, "a small town. 
The adjacent islands possess but a small population, de- 
pendent on it for supplies. Probably not three merchant 
steamers ever arrived at that port from any part of the 
6482—01 4 

48 "continuous voyages' 1 — NOTES. 

world until after the present blockade \v:is established* 
except the regular Government mail steamers. Was her 
cargo to be sold in Nassau, including the 920 rifles and the 
2,240 swords? These are questions which it is not unrea- 
sonable that a prize court should ask and expect some 
reasonable explanation of in a case like this." 

2. That it appeared that Mr. Grazebrook did not intend 
that the vessel should be sold at Nassau or that her voyage 
should end there. *' She was." said Judge Marvin. " to go 
from Nassau somewhere. More goods were to he put on. 
instead of taking any otl. The studied effort to conceal 
the ulterior destination: the swords and rifles found on 
board, and denominated 'hardware;' the almost certain 
impossibility of employing a steamer of this class and size 
in any trade in this part of the world by which she could 
earn even her expenses, other than in the trade and busi- 
ness of violating the blockade; all point with unerring 
certainty to Charleston or Wilmington as the ulterior des- 
tination of the vessel and cargo." 

Both were accordingly condemned; 1 and no appeal was 

Case of the Pearl* — May 6, L863, Judge Marvin de- 
cided the case of the Pearl? This vessel, a small steamer 
of 72.17 tons net. was captured by the U. S. S. Tioga, 
January 2<>, 1863, about <>0 or 70 miles from Nassau, while 
ostensibly on a voyage from Liverpool to that port. A 
claim to the vessel was made by the master on behalf of 
one Wigg, a merchant of Liverpool, and to the cargo, on 
behalf of II. Adderly & Co., of Nassau. 

In deciding the case, Judge Marvin observed that he had 
already held, in the case of the Dolphin, "that a vessel 
bound on a voyage from Liverpool to Nassau, with an 
intention of touching only at the latter port, and of pro- 
ceeding thence to a blockaded port of the enemy, is 
engaged in an attempt to violate the blockade, which sub- 
jects her to capture in the antecedent as well as in the 

'Judge Marvin in the course of bis opinion cited The Columbia, 
1 (\ Rob., I">4; The NeptunuH, lM '. Rob., 110; The Tmina, :i C. Hoi)., 
Ki7: The Maria, ■"> C. Rob., 365; Tin- William, 5 0. K<»b., . ,<S5; The 
Richmond, "> ( '. Rob., 325; The Thomyru, Edwards's Adm., 17; The 
Odin, I C. Rob., 252. 

2 19 Fed. Cases, 54 


ultimate stage of the voyage— before arriving at Nassau 
as well as after having left that port. I think the law also 
is that if an owner sends his vessel to a neutral port, with a 
settled intention to commence from such a port a series of 
voyages to a blockaded port, he thereby commences to 
violate the blockade, and subjects his vessel to capture, 
notwithstanding he may also intend to unlade the vessel at 
the neutral port, discharge the crew, and give all other 
external manifestations of an intention to end the voyage 
at such port. Where a deliberate purpose exists to violate 
a blockade, and measures are actually taken to accomplish 
that object, the law couples the act and the intent together 
and declares the offense to be complete. The resorting, 
therefore, to a neutral port for the purpose of the better 
disguising the intention^ or of procuring a pilot for the 
blockaded port, or of perfecting the arrangements so as to 
increase the chances of a successful violation of the block- 
aded port, will not, in the least, extenuate the offense or 
avoid the penalty. These measures ma}' increase the diffi- 
cult} T of discovering the true intention, but whenever it 
is discovered it will give to the transaction its true legal 
character." 1 

The bill of lading stated that the cargo was shipped by 
Wigg to be delivered to Adderly & Co. No letter of 
advice, nor any invoice, was found among the papers; and 
seven members of the crew concurred in the understand- 
ing that they were engaged in a blockade-running venture. 
Nevertheless, as the vessel when captured was really 
going from one neutral port to another, Judge Marvin 
stated that he was unwilling to pronounce a condemnation 
without affording the claimants all the facilities they might 
desire for rebutting the presumption that they were en- 
gaged in an unlawful enterprise. He therefore ordered 
that the claimant of the vessel "be allowed to produce 
further evidence, by his own oath and otherwise, touching 
his interest therein, and the use he intended at the time of 
capture to make of the vessel after her arrival at Nassau. 

'Citing The Columbia, 1 C. Rob., L54; The Neptunus, 2 C. Rob., 
110; Yeaton /•. Fry, 5 Cranch, 335; The Richmond, 5 C. Rob., 325; 
The Maria, id., 365; The William, id., 385. 


the trade or business he intended she should be engaged 
iii. and for what purpose she was going to that port; and 
that the claimant of the moods have time to procure an 
affidavit of his right and title thereto, and to produce 
such other proof of neutral ownership as he may be 

No new evidence was taken under this order; but the 
court, on a further hearing, probably influenced by the 
fact that the cargo consisted of In bales of cloth and 
ready-made clothing, and contained nothing distinctively 
pointing to a belligerent destination, decreed restitution 
of the vessel and cargo, on payment by the claimants of 
expenses and costs. 1 

The Supreme ( !ourt reversed this decree, and condemned 
both ship and cargo. In pronouncing sentence as to tin 4 
vessel, the following grounds were mentioned: 

The fact that the firm of II. Adderly & Co. had become 
well known in the court as largely engaged in the business 
of blockade running; the testimony of the crew as to the 
Confederate destination of the vessel; the failure to take 
new evidence on the order for further proof; the absence 
from Wigg's affidavit, produced on the motion for fur- 
ther proof, of any statement as to the use intended to be 
made of the vessel after her arrival at Nassau, or as to the 
purpose for which she was going thither; and the defec- 
tive and suspicious character of other testimony for the 
claimant. Tin 4 court declared itself satisfied that the ves- 
sel " was destined, either immediately after touching at 
that port | Nassau ] or as soon as practicable after needed 
repairs, for one of the ports of the blockaded coast." 

As to the cargo, it was observed that the evidence 
showed ownership in Wigg rather than in any other person, 
but that no claim was put in by him. The master put in 
a claim for Adderly & ( Jo. . but in his deposition disclaimed 
all knowledge of ownership, exceptfrom the consignment; 
and the neglect of the firm to put in an affidavit of title or 
neutral ownership, under the order for further proof, 
could not. said the court, be construed otherwise than as 

'The Pearl, •"> Wallace, 574. 


an admission that they were not entitled to restitution. 
The cargo was therefore condemned with the ship. 1 

Case of the Stephen Hart. — The doctrine of continuous 
voyages was next judicially discussed by Judge Betts. of 
the United States district court for the southern district 
of New York, in a series of cases of which we may take. 
as the leading example, that of the Stephen Hart, con- 
demned July 30. 1863. 2 On the same day Judge Betts 
rendered similar sentences in the cases of the Springbok 
and the Peterhqff, which will be noticed hereafter, the 
case of the Gertrude, which will also be mentioned in 
association with them, having been disposed of by a sen- 
tence of condemnation previously in the same month.'"' 

The Stephen Hart was captured January 29, 1862, by 
the V . S. S. Supply, off the southern coast of Florida, 
about 25 miles from Key West and 82 miles from Point 
de Yeacos. in Cuba. The vessel was claimed by one Harris, 
a British subject, and the cargo by the firm of Isaac. Camp- 
bell & Co., of London. The cargo consisted of arms, 
ammunition, and military clothing. The vessel was bound 
ostensibly to Cardenas, in Cuba. There were found on 
board, at the time of her capture, her register and sundry 
bills, certificates, telegrams, and letters, a clearance, two log- 
books, a copy of the United States Coast Survey for 1856, 
and various other papers, but no invoices, no bills of lading. 

] The Pearl (1866), 5 Wall., 574. 

2 Blatchford's Prise Cases. 387. 

3 The Gertrude, an English iron screw steamer, 450 tons, was captured 
off the island of Eleuthera, April 16, L863, by the V. S. S. Vanderbilt, 
Baldwin, commanding. In his report to Admiral Wilkes, Commander 
Baldwin said: "The Gertrude has on board an assorted cargo, includ- 
ing 250 barrels of powder, which stamps her as a contraband trader. 
* * * No logbook can be found as yet." She was "caught after 
a hard chase of 28 miles, during which time a part of her cargo was 
thrown overboard, She was endeavoring to reach Harbor Island,'" and 
showed no colors till three shots had been fired, the last one at her. 
when she hoisted English colors. She "left Nassau on or about the St h 
of April," and had since been off the southern coast, but having failed 
to run the blockade, and having only 36 hours' coal aboard, was on 
her way back to Nassau when fallen in with. A person was on board, 
a citizen of Charleston, who was taken t<> be a pilot. (Official Record- 
of the Union and Confederate Navies, Ser. I. vol. 2, p. 159.) No claim 
was put in for the vessel and no appeal taken from the sentence of 

52 "continuous voyages — NOTES. 

and do manifest. The vessel was originally built and 
owned in the United States, and there was strong evidence 
to -li<>\\ that she was enemy's property. The shipping 
articles specified a voyage from London to Cuba and Sierra 

Leone aud any ports on the coast of Africa, of North or 
South America, or of the West Indies, and back to the 
United Kingdom. The letter of instructions from the 
owners of the cargo directed the master to proceed to 
Cardenas. Cuba, and on arrival there to report to "Charles 
J. Helm, esq.," who was to direct his " future actions 
with reference to the schooner and cargo." Charles ,1. 
Helm was the agent of the Confederate States in Cuba. 

The first mate 4 testified that "the destination of the 
cargo was certainly to one of the Confederate States, and 
the vessel was in like manner so destined, if Charles. I. 
Helm, the Confederate agent at Cuba, should so direct." 
He narrated at Length how he had met Mr. Yancey and 
other well-known agents of the Confederacy at the house 
of Isaac. Campbell &Co.. and how he was at first employ ed 
to undertake a blockade-running adventure on the steamer 
Gladiator, and was afterwards transferred to the St,j>/, f ,, 
Hart, nominally as mate hut really in charge of the cargo. 
Before the Stephen Hart sailed he was directed by one of 
the Confederate agents to proceed to Cardenas and there 
work under the instructions of Charles J. Helm, and he 
was informed that the cargo was to be transshipped into 
a steamer which could with greater facility run the block- 
ade, unless, indeed, the Stephen Hart should be ordered 
to proceed herself. 

Upon this and much other evidence of similar purport, 
Judge Betts declared that no doubt was left upon his 
mind that the case was "one of a manifest attempt to 
introduce contraband goods into the enemy's territory by a 
breach of blockade." There was an absence of all papers 
and circumstances to warrant the conclusion "that there 
was any intent to dispose of the cargo at Cardenas m the 
usual way of lawful commerce." The consignee of the 
entire cargo was the agent of the enemy, and it was Laden 
<>n board by the enemy's agent in London. 

The broad issue upon the merits of the cause was. said 
Judge Betts, " whether the adventure of the Stephen Hart 


was the honest voyage of a neutral vessel from one neu- 
tral port to another neutral port, carrying neutral goods 
between those two ports only, or was a simulated voyage, 
the cargo being contraband of war. and being really des- 
tined for the use of the enemy, and to be introduced into 
the enemy's country by a breach of blockade by the Ste- 
phen Hart, or by transshipment from her to another ves- 
sel at Cardenas." This question, declared Judge Betts, 
was not to be decided by merely ascertaining whether the 
vessel was documented for, and sailing upon, a voyage 
from London to Cardenas. If the inquiry were thus 
limited "a very wide door would be opened for fraud and 
evasion." The commerce consisted in the destination and 
intended use of the property laden on hoard the vessel, 
and the proper test to be applied was whether the con- 
traband goods "are intended for sale or consumption in 
the neutral market, or whether the direct and intended 
object of their transportation is to supply the enemy with 
them." If such was the object they were not exempt 
from forfeiture merely on the ground that they were neu- 
tral property, and that the port of delivery was also 
neutral. In this relation, Judge Betts said: 

* ; If the guilty intention, that the contraband goods 
should reach a port of the enemy, existed when such 
goods left their English port, that guilty intention can 
not be obliterated by the innocent intention of stopping 
at a neutral port on the way. If there be. in stopping at 
such port, no intention of transshipping the cargo, and if 
it is to proceed to the enemy's country in the same vessel 
in which it came from England, of course there can be no 
purpose of lawful neutral commerce at the neutral port 
by the sale or use of the cargo in the market there: and 
the sole purpose of stopping at the neutral port must 
merely be to have 1 upon the papers of the vessel an osten- 
sible neutral terminus for the voyage. If. on the other 
hand, the object of stopping at tin 1 neutral port be to trans- 
ship the cargo to another vessel to be transported to a port 
of the enemy, while the vessel in which it was brought 
from England does not proceed to the port of the enemy, 
there is equally an absence of all lawful neutral commerce 
at the neutral port: and the only commerce 1 carried on in 


the case is that of the transportation of the contraband 
cargo from the English port to the porl of the enemy, as 
was intended when it left the English port. The court 
hol(l> that, in all such cases, the transportation or voyage 
of the contraband goods is to be considered as a unit, from 
the port of lading to tin 1 port of delivery in the enemy's 
country: that if any part of such voyage or transporta- 
tion he unlaw ful. it is unlawful throughout; and that the 
vessel and her cargo are subject to capture, as well before 
arriving at the first neutral port at which she touches after 
her departure from England, as on the voyage or trans- 
portation by sea from such neutral port to the port of the 
enemy." 1 

Judge Betts was careful to distinguish between such a 
voyage as that in which the Stephen Hart was engaged 
and a voyage having an actual neutral terminus. With 
regard to the latter and to the vessel before the court he 

"If she was, in fact, a neutral vessel and if her carffo, 
although contraband of war. was being carried from an 
English port to Cardenas for the general purpose of trade 
and commerce at Cardenas, and for use or sale at Car- 
denas, without any actual destination of the cargo, prior 
to the time of capture, to the use and aid of the enemy. 
then most certainly both the vessel and her cargo were 
free from liability of capture." 

The sentence of condemnation pronounced by Judge 
Betts in this case was affirmed by the Supreme Court. 
Chief Justice Chase, who delivered the opinion, observed 
that the principal features of the case resembled that of 
the Bermuda and her cargo, but were perhaps even more 
irreconcilable with neutral gfood faith. " It is enough to 
say," declared Chief Justice Chase, "that neutrals who 

1 In support of these propositions Judge I>ctt> cited the cases of The 
Dolphin and The Pearl, supra; Halleck on [nternational Law. chap. 
21, sect. 11, p. 504; 1 Kent's Commentaries, eighth edition, p. 85, note 
//; 1 Duer on Insurance, 568; Jeckertf. Montgomery, is Howard, ll'i. 
L15; 2Wildman'a [nternational Law. 20; TheJonge Pieter, 4 ( '. Rob., 
7 l .t: The Richmond, •"> ('. Rob., 356; The ljVilliam, 5 ( '. Rob., 385; The 
Nancy, 3 C. Rob., 122; The United states. Stewart's Adm. Rep., L16; 
The Tmina, 3 C. Rob., 1<>7; The Trende Sostre, 6 ('. Rob, 390; Tne 
Columbia, 1 C. Rob., L54; The Neptunus, 2 C. Rob., L10. 


place their vessels under belligerent control and engage 
them in belligerent trade or permit them to be sent with 
contraband cargoes under cover of false destination to neu- 
tral ports, while the real destination is to belligerent ports, 
impress upon them the character of tin 4 belligerent in 
whose service they are employed, and can not complain if 
they are seized and condemned as enemy property." 1 

Case of the Bermuda. — The question discussed in the 
foregoing cases was tir^t dealt with by the Supreme Court 
in the case of the 4 steamship Bermuda? which came up on 
an appeal from a decree of the United States district court 
for the eastern district of Pennsylvania condemning the 
vessel and part of her cargo, which were captured by the 
U. S. S. Mercedita, April 26, L862, near the British West 
India island of Abaco. 

It was claimed by the captors that the vessel was 
enemy's property: that it was her intention with her 
cargo, which was largely composed of munitions of war. 
to break, either directly or by transshipment, the block- 
ade of the southern coast of the United States, and that 
both ship and cargo were on these and other grounds 
liable to capture and condemnation. 

The ostensible owner of the ship was one Haigh. a Brit- 
ish subject; her original master was one Tessier, a South 
Carolinian. On the day after her registration. Haigh. as 
appeared by a document from the Liverpool customs, 
executed a power of attorney to two persons named Hencle 
and Trenholm, both of Charleston. South Carolina, to sell 
the ship at any place out of the Kingdom for any sum 
they might deem sufficient. Trenholm was a member of 
the firm of Frazer, Trenholm & Co., of Liverpool, a 
branch of the house of John Frazer & Co.. of Charleston, 
and the fiscal agents of the Confederacy in Great Britain, 
in which capacity they were largely engaged in fitting out 
cruisers and blockade runners. 

With the registry and power of attorney above men- 
tioned the Bermuda sailed for Charleston, S. C. Subse- 
quently she changed her course and ran the blockade of 
Savannah, returning to Liverpool in the 1 autumn of the 
same year. Her master. Tessier, was then transferred to 

•The Hart, 3 Wallace, 559. 2 3 Wallace, 514; 1865. 

56 "continuous voyages '' NOTES. 

the I><i/i<im<t. which afterwards became known for carry- 
ing the armament of the Confederate cruiser Alabama. 
In his place, as master of the Bermuda, was installed one 
Westendorff, who was licensed by the British authorities, 
on the recommendation of Frazer, Trenholm & Co., as an 
experienced shipmaster, sailing out of Charleston, who 
had commanded one of their ships. The name of the 
firm of Frazer. Trenholm <Sc Co., Liverpool, was indorsed 
on the back of WestendorfPs license as his address. 

The Bermuda was now prepared at West Hartlepool for 
another voyage, ostensibly to Bermuda. The cargo con- 
sisted of various things, including tea, coffee, drugs, sur- 
gical instruments, shoes, boots, leather, saddlery, lawns 
with figures of a youth bearing onward the Confederate 
flag, military decorations, epaulettes, stars for the shoulder 
straps of officers of rank, many military articles with 
desions appropriate for use in the Confederate States, 
cases of cutlery stamped with the names of merchants in 
Confederate cities, several cases of double-barrelled gfuns 
stamped as manufactured for a dealer in Charleston, a large 
amount of munitions of war. five finished Blakely cannon 
in cases, with carriages, six cannon without cases, a thou- 
sand shells, several hundred barrels of gunpowder, 72,000 
cartridges, 1^00,000 percussion caps. 21 cases of swords, 
and in addition a large quantity of army blankets and other 
materials. Numerous 'letters of friendship and business 
were found on board the vessel, as well as books and news- 
papers addressed to different persons in the Confederate 
States, and also a few memoranda, apparently in the nature 
of requests from persons in Charleston to Capt. Westen- 
dorff to buy things for them in England and bring them 
through the blockade. There were also on board several 
persons denominated in various letters as ''Government 
passengers," and in one letter as "printers and engravers," 
who had been sent from Scotland by an agent of the Con- 
federate Government, and who were entered on the crew 
list of the Bermuda as common sailors. They had with 
them a large number of boxes containing Confederate 
postage stamps, copper plates, envelopes, printing ink. 
and many reams of white bank-note paper watermarked 
C. S. A. There were also on board certain well-known 


gentlemen, residents of Charleston, who were also entered 
on the shipping list as common sailors, under disguised 
names. Of the ship's real company, the master, the first 
mate, the clerk, and three seamen, were citizens of South 
Carolina, and the second mate, carpenter, and cook be- 
longed to other Confederate States. 

There were 45 bills of lading, of which 41 were for goods 
shipped by Frazer, Trenbohn & Co. The Avhole cargo was 
shipped under their direction, and according to the bills 
of lading was to be delivered at the island of Bermuda 
"unto order or assigns.** No consignees were named. 
Several persons connected with the ship, who were exam- 
ined in preparatorio, thought that she belonged to Frazer. 
Trenholm & Co. A letter of one of the mates, found on 
board, seemed to indicate the same thing, as also a letter 
of the former captain, Tessier, to Westendorff. 

Much stress was laid by the captors upon the corre- 
spondence found on board. It appeared that on January 
16, 1862, Frazer, Trenholm & Co.. at Liverpool, wrote to 
John Frazer & Co.. at Charleston, that they had dispatched 
the ship Ella with a cargo to N. T. Butterfield, their agent 
at Hamilton. Bermuda, and that she would be followed by 
the steamer Bermuda with goods. On January 23 they 
wrote again, inclosing bills of lading of the cargo of the 
Ella and copies of invoices. The goods, they said, were 
"'all shipped by our friends here; but the disposition of 
them there is left entirely to you. and in any market in 
which you may please to direct them. The bills of lading 
are indorsed to your order, or that of your authorized 
agent. * * * Captain Carter [of the Ella] is instructed 
to proceed to Bermuda, and there await your instructions." 
which were to be sent under cover to Butterheld. By a 
later letter, of February 28. 1862, addressed to "Messrs. 
Jno. Frazer & Co. (or their authorized agent), Hamilton. 
Bermuda,** Messrs. Frazer, Trenholm & Co.. referring to 
the invoices and bills of lading of tin 1 Bermuda, said thev 
were "very full in every particular, and we think will 
greatly facilitate the delivery and also the transshipment, 
should this be determined upon." On April 1. L862, the 
Charleston house, having by a previous letter informed 
Butterfield that they have been advised that the Ella had 


been dispatched and that she would be followed by the 
Z?< mi mid, wrote another letter requesting him to direct 
Captain Westendorff to take certain articles from the EUa 
and proceed to Nassau, reporting himself on arrival there 
to II. Adderly & Co., and to request Captain Carter to 
"keep in his cargo and wait further orders from as." 
This letter was received by Butterfield on the L9th of 
April and was forwarded the same day to Westendorff, at 
St. George's. Westendorff immediately acted upon it and 
sailed on the 23d of April toward Nassau. He had arrived 
at Bermuda on the L9th of March and had remained there 
about five weeks, during which the cargo was not touched. 
The gentlemen from Charleston were aboard. 

Among the papers taken on board there was also an 
unfinished letter without signature, hut apparently written 
by tin 1 engineer of the Bermuda to a friend. This letter 
was dated at Liverpool, February 16, L862, and stated 
that " our tender." a light-draft boat called the Herald, had 
left the day before with a crew shipped for twelve months 
"for some port or ports south of Mason and Dixon's 
line:" that "three captains" were on the tender — "one 
an Englishman, nominal: another, an experienced coast 
pilot from the Potomac to Charleston; another, ditto, 
ditto, from Charleston to the San Juan River in Texas. 
If the Yankees reach her. they are smarter than 1 give 
them credit for. She awaits our arrival in Bermuda: <>-oes 
first into Charleston, * * * ." 

The record disclosed that the captain of the Herald, after 
his arrival at Bermuda, drew a bill on Frazer, Trenholm 
& Co.. at Liverpool, in favor of Westendorff, showing 
that the latter had advanced a certain amount of money to 
the Herald. It was also testified by a person on the Ber- 
muda that the Herald was connected with the former ship. 

Al the time of the capture, and after the vessel was 
boarded, the captain's brother, by his order, threw over- 
board two small boxes and a package, which he swore lie 
understood contained postage stamps, and a bag which he 
understood contained letters, and which he was instructed 
to destroy in case of capture. One of the gentlemen from 
Charleston also destroyed a number of letters, which he 
-wore were private letters, intrusted to him by Americans 
in Europe. 


On the part of the claimants it was contended — 

1. That the vessel was captured within British territo- 
rial waters. 

2. That both the vessel and the cargo were owned by 
neutrals, and that their destination was cither Bermuda or 
Nassau, a neutral port. 

3. That there was no intent to run the blockade; that 
the ship, after arriving at Bermuda, was instructed to 
proceed to Nassau in order that her cargo might be landed 
and another cargo be taken on board for some port in 
Europe; that it was the intention of the consignees at Nas- 
sau, who were correspondents of Frazer. Trenholm & Co., 
to carry out these instructions strictly; that a part of the 
munitions of war were intended for the Government of 
Hayti, and the rest, "for sale at Bermuda or Nassau, in 
the usual course of business, to any person willing to pur- 
chase the same." 

-i. That the fact that the ship was not intended to run 
the blockade was shown by the circumstance that the ••gov- 
ernment passengers," though the} r a 1 ! undoubtedly wished 
to enter the Confederate States, all disembarked at Ber- 
muda and did not rejoin the vessel when she sailed to 

5. That there was no concealment as to anything on 
board; that everything was fairly entered on the bills of 
lading and manifest; and that the crew were shipped for 
a term not exceeding twelve months from Liverpool to 
Bermuda, and thence, if required, to any ports or places 
in the West Indies, British North America, the United 
States, and back to the United Kingdom; and that their 
wages did not exceed that of ordinary voyages in peaceful 

The opinion of the court was delivered by Chief Justice 
Chase, and was unanimous. 

The court held that all the circumstances, including that 
of the spoliation of papers, which was one of unusual 
aggravation, warranted the most unfavorable inference as 
to ownership, employment, and destination; that all tin 1 
transactions repelled the conclusion that Haigh was the 
true owner; that not a document taken on the ship showed 
ownership in him except the shipping articles, which were 


false in putting upon the crew list employees of the Con- 
federate Government and enemy passengers; that theiv 
was no indication that, after Haigh gave the power of 
attorney, he performed a single act of ownership; that no 

letter alluded to him as owner, and no direction as to vessel 
or cargo recognized him as such; hut that, on the contrary, 
all the papers and all the circumstances indicated that a 
sale was made in Charleston under the power, by which 
the beneficial control and real ownership were transferred 
to John Frazer <Sc Co., while the apparent title, by the 
British papers, was suffered to remain in Haigh as a cover. 
It was therefore held that the ownership of Haigh was a 
pretense, and that the vessel was rightly condemned as 
enemy property. 

Assuming for the moment, however, that Haigh was 
the owner of the ship, the court next considered the ques- 
tion as to the employment of the vessel and cargo at the 
time of the capture. The theory of counsel for Haigh 
was, said the court, that the ship was neutral and carried 
a neutral cargo, in good faith, from one neutral port to 
another; and they insisted that the description 1 of cargo, 
if neutral, and in a neutral ship, and on a neutral voyage, 
could not be inquired into in the courts of a belligerent. 
•" We agree to this.** said the court. Neutrals might "con- 
vey in neutral ships, from one neutral port to another, any 
goods, whether contraband of war or not. if intended for 
actual delivery at the port of destination, and to become 
part of the common stock of tin 1 country or of the port." 

It was asserted by counsel, said the court, that British 
merchants had "a perfect light to trade, even in military 
-tores, between their own ports, and to sell at one of them 
goo(^s of all sorts, even to an enemy of the United States, 
with knowledge of his intent to employ them in rebel war 
against the American Government. If," continued the 
court. " by trade between neutral ports is meant real trade, 
in the course of which goods conveyed from one port to 
another become incorporated into the mass of goods for 
-ale in the port of destination; and if by sale to the ene- 

1 Possibly the phrase "description of cargo," which appears in the 
published report, is a misprint. The character of the cargo is what 
seems to be meant. 


inies of the United States is meant sale to either belliger- 
ent, without partiality to either, we accept the proposition 
of counsel as correct. But if it is intended to affirm that 
a neutral ship may take on a contraband cargo ostensibly 

for a neutral port, hut destined in reality for a belligerent 
port, either by the same ship or by another, without becom- 
ing liable, from the commencement to the end of the voy- 
age, to seizure, in order to the confiscation of the cargo, 
we do not agree to it." 

Applying these principles to the ease under consideration, 
the court observed that a large part of the cargo was contra- 
band in the narrowest sense of the word, and a part of it 
expressly destined to the Confederate States. so that the char- 
acter of the cargo made " its ulterior, if not direct, destina- 
tion to a rebel port quite certain."' There was. besides, evi- 
dence of destination found in the letters of Frazer. Trenholm 
& Co. which made distinct references to the contingency 
of transshipment; and the evidence showed that the Ht Paid 
was sent over with a view to this. Moreover, the consign- 
ment of the whole cargo to order or assigns, which meant 
in fact to the order of .John Frazer & Co.. of Charleston. 
was "conclusive, in the absence of proof to the contrary, 
that its destination was the port in which the consignee 
resided and transacted business. * * * It makes no 
difference," said the court, " whether the destination to the 
rebel port was ulterior or direct: nor could the question 
of destination be affected by transshipment at Nassau, if 
transshipment was intended, for that could not break the 
continuity of transportation of the cargo. The interposi- 
tion of a neutral port between neutral departure and bel- 
ligerent destination has always been a favorite resort of 
contraband carriers and blockade runners. But it never 
avails them when the ultimate destination is ascertained. 
A transportation from one point to another remains con- 
tinuous, so long as intent remains unchanged, no matter 
what stoppages or transshipments intervene." 1 There 
seemed to be no reason, said the court, "why this reason- 
able and settled doctrine should not be applied to each ship 

1 The court cited Jecker v. Montgomery, 18 Howard, 114; The Potty, 
2C. Rob., 369; The William, 5 C. Rob„ 395; 1 Kent's Commentaries, 

S4. note. 


where several are engaged successively in one transaction. 
namely, tin* convevance of a contraband cargo to a bellisr- 
erent. The question of Liability must depend on the good 
or bad faith of the owners of the ships. If a part of the 
voyage is lawful, and the owners of the ship conveying the 
cargo in that part are ignorant of the ulterior destination, 
and do not hire their ship with a view to it. the ship can 
not he Liable; hut if the ulterior destination is the known 
inducement to the partial voyage, and the ship is engaged 
in the latter with a view to the former, then whatever Lia- 
bility may attach to the final voyage must attach to the 
earlier, undertaken with the same cargo and in continuity 
of its conveyance. Successive voyages, connected by a 
common plan and a common object, form a plural unit. 
They are links of the same chain, each identical in descrip- 
tion with every other, and each essential to the continuous 

Should the Bermuda^on these principles, be condemned 
for the conveyance of contraband? By the ancient rule, 
said tin 4 court, the vessel which carried contraband was 
condemned as well as the cargo. Of this rule there had 
been a great but very proper relaxation to the effect that 
the neutral might convey contraband to a belligerent, suit- 
ject to no liability except seizure with a view to the con- 
fiscation of the offending goods. This relaxation, however, 
required mood faith on the part of the neutral, and did not 
protect the ship where good faith was wanting. Thus, tin 1 
carrying of contraband with a false destination was a 
ground of condemnation. 1 Mere consent to transportation 
of contraband will not always or usually be taken to be a 
violation of good faith: but the belligerent is entitled to 
require of neutrals a frank and bona ti</< conduct.'' So. 
too. vessels had been condemned for being engaged act- 
ually or practically in enemy service. 3 

What. then, inquired the court, were the marks by 
which the conveyance of contraband on the Bermuda was 

^he Franklin, 3 ( '. Rob., 224. 

-The Neutralitet, 3 C. Rob., 296; Carrington v. Merchants' Insurance 
Co., 8 Peters, 518; The Ranger, 6 C. Rob., 126. 

'The Jongi Emilia, '-\ ('. U<>1».. 52; The Carolina, 4 ( '. Rob., 256. 


accompanied? First, there was the character of the con- 
traband articles fitted for immediate military use in battle 
or for the immediate civil service of the enemy govern- 
ment; then, the deceptive bills of lading- requiring deliv- 
ery at Bermuda, when there was either no intention to 
deliver there at all or none not subject to be changed by 
the enemies of the United States:, then, the appointment 
of one of these enemies as master, necessarily made with 
the knowledge and consent of Haigh, if he was the owner; 
then the complete surrender of the vessel to the use and 
control of such enemies, without even the pretence of 
want of knowledge by the alleged owner, of her destined 
and actual employment. The circumstances rendered it 
highly probable that the ship at the time of capture was 
actually in the service of the Confederate Government, and 
known to be so b} T all parties interested in her ownership. 
But, however this might be, it could not be doubted that 
the Bermuda was justly liable to condemnation "for the 
conveyance of contraband goods destined to a belligerent 
port, under circumstances of fraud and bad faith, which 
make the owner, if Haigh was owner, responsible for 
unneutral participation in the war. The cargo, having all 
been consigned to enemies, and most of it contraband, 
must share the fate of the ship/' 

Having thus disposed of the questions connected with 
the ownership, control, and employment of the Bermuda 
and the character of her cargo, the court added that little 
need be said on the subject of liability for the violation of 
the blockade. "What has been already adduced of the 
evidence," said the court, "satisfies us completely that 
the original destination of the Bermuda was to a block- 
aded port, or, if otherwise, to an intermediate port, with 
intent to send forward the cargo by transshipment into a 
vessel provided for the completion of the voj^age. It may 
be that the instructions to Westendorff were not settled 
when the steamship left St. George's for Nassau; but it is 
quite clear to us that the ship was then at the disposition 
of John Frazer & Co., and that the voyage, begun at Liv- 
erpool with intent to violate the blockade, delayed at St. 
George's for instructions from that firm, continued toward 
6482—01 5 

64 "continuous voyages" — NOTE* 

Nassau for the purpose of completion from that port to a 
rebel port, either by the Bermuda herself or by trans- 
shipment, was one voyage from Liverpool to a blockaded 
port, and that the liability to condemnation for attempted 
breach of blockade was. by sailing with such purpose, 
fastened on the ship as firmly as it would have been by 
proof of intent that the cargo should he transported by 
the Bermuda herself to a blockaded port, or as near as 
possible, without encountering the blockading squadron, 
and then sent in by a steamer, like the II* raid, of lighter 
draft or greater speed." 

A- to the question of capture within neutral waters, the 
court observed that there was nothing in the evidence 
which proved to its satisfaction that such was the fact. 

It was therefore held that "both vessels and cargo, even 
if hoth were neutral, were rightly condemned.** 

By this judgment the decree of the court below con- 
demning the vessel and the munitions of war was affirmed. 
Subsequently the district court passed a decree condemn- 
ing the residue of the cargo. 

Cast of the Springbok. — Of all the decisions rendered 
by the Supreme Court in cases involving the question of 
continuous voyage, that which was pronounced in the case 
of the British bark Springbokhas been most discussed and 
most criticised. 1 The case came up on appeal from a 
decree of the United States district court for the southern 
district of New York, condemning the bark and her 
cargo.'' which had been captured at sea by the United 
States gunboat Sonoma. 2 

h appeared the vessel was owned by British subjects 
and was commanded bv the son of one of the owners. She 

E The Springbok (1866), 5 Wallace, 1. 

1 Blatchford'a Prize Cases, 349; May, 1863. 

mmander T. II. Steven.-. ('. s. s. Sonoma, in a report to Admiral 
Wilkes, Feb. 9, 1863, said: "On the morning of the 3d of February, 

while looking for the Oreto, I captured the English hark Springbok, 
loaded with contraband, bound to Nassau, bui having nothing in the 
way of a manifest of a legal character, and being upon the list fur- 
nished by you. I sent her to New York for adjudication in charge of 
Acting Master Foster Willis, with a prize crew from this vessel. The 
vessel was from London. The capture was made in latitude 25° 41 / 
X.. long. 74° 46' "W." (Official Records of the Union and Confederate 
Navies, Ser. I, vol. 2, p. 70.) 


was chartered November 12, L862, to T. S. Begbie, of Lon- 
don, to take a cargo of merchandise and therewith "pro- 
ceed to Nassau, or so near thereunto as she may safely get, 
and deliver same," and thirt\ T days were allowed "for 
loading at port of loading and discharging at Nassau." 
This document was indorsed by Speyer & Haywood, who, 
en December 8, 1862, instructed the master: "You will 
proceed at once to the port of Nassau, N. P., and on 
arrival report yourself to Mr. B. W. Hart there, who will 
give you orders as to the delivery of your cargo." In a 
letter directed to Hart, Speyer & Haywood spoke of them- 
selves as acting "under instructions from Messrs. Isaac, 
Campbell & Co." By the bills of lading the cargo was to 
be delivered to order or assigns. 

The ship set sail from London December 8, 1862, and 
was captured February 3, 1863, about 150 miles east of 
Nassau, when making for that port. When captured, she 
made no resistance and her papers were given up without 
any attempt at concealment or spoliation. 

On the hearing before the district court, counsel for the 
captors invoked the proofs taken in two other cases then 
on trial, namely, United States v. The Steamer Gertrude, 1 
and Linked States v. The Schooner Stephen Hart. 2 As 
has been seen, the Stephen Hart was captured Januaiy 29, 
1862, and the claimants of her cargo were Isaac, Campbell 
<& Co., who claimed jointly with Begbie the cargo of the 
Springbok. The brokers who had charge of the lading of 
the Stephen Hart were also Speyer & Haywood. The 
Gertrude was captured April 16, 1863, oil' one of the 
.Bahama islands while on a voyage ostensibly from Nassau 
to St. John's, N. B. She was condemned, and no claim 
was put in either to the vessel or her cargo. The testi- 
mony showed that she belonged to Begbie ; that her cargo 
consisted, among other things, of hops, dry goods, drugs, 
leather, cotton cards, paper, 3,960 pair of gray army 
blankets, 335 pair of white blankets, linen, woolen shirts, 
flannel, 750 pair of army brogans, Congress gaiters, and 
24,900 pounds of powder; that she was captured after a 

^latchford's Prize Cases, 374; July, 1863. 
2 Id. 387; July, 1863, supra. 

66 "continuous voyages" — notes. 

chase of three hours, and when making for the harbor of 
Charleston, her master knowing of its blockade, and hav- 
ing on board a Charleston pilot tinder an assumed name. 

The opinion of the Supreme Court in the case of the 
Springbok was delivered by Chief Justice Chase. He 
admitted that the invocation of the documents in the cases 
of the Gertrua\ and the St<j)h<n Ha/rt, at the original 
hearing, was not " strictly regular;" but he also held that 
the irregularity was not such as would justify a reversal 
of the decree of the court below, or a refusal to examine 
the documents invoked and forming part of the record. 

It had already been held, said the court, in the case of 
the Bermuda that where goods destined ultimately for a 
belligerent port were "being conveyed between two neu- 
tral ports by a neutral ship, under a charter made in good 
faith for that voyage, and without any fraudulent connec- 
tion on the part of her owners with the ulterior destina- 
tion of the goods." the ship, though liable to seizure in 
order that the goods might be confiscated, was not liable 
to condemnation as prize. The Springbok was thought 
fairly to come within this rule. Her papers we re regular 
and genuine and showed a neutral destination of the ship. 
Her owners were neutral and did not appear to have any 
interest in the cargo, nor was there any proof that they 
knew of its alleged unlawful destination. It was there- 
fore adjudged that the ship should be restored; but in 
view of a misrepresentation made by the master when ex- 
amined and of the circumstance that he signed bills of 
lading which did not truly and fully state the nature of 
the goods contained in certain bales and cases, no costs or 
damages were allowed to the claimant. 

The case of the cargo was. said the court, quite differ- 
ent. In addition to the facts heretofore noted as to the 
lading and consignment of the cargo, the court stated that 
the bills of lading, while thev disclosed the contents of 
619 packages, '•concealed" the contents of 1,888. On 
this point the court laid great stress, especially in view of 
the fact that the owners of the cargo knew that it was 
going " to a port in the trade with which the utmost can- 
dor of statement might be reasonably required." The 
true reason of the concealment must be found in the de- 
sire of the owners to hide from the scrutinv of the Amer- 


ican cruisers the contraband character of a considerable 
part of the contents of the packages. Moreover, the bills 
of lading- and the manifest "concealed" the names of the 
owners. The true motive of this concealment must have 
been, said the court, the apprehension of the claimants 
that the disclosure of their names as owners would lead 
to the seizure of the ship in order that the cargo might 
be condemned. It was admitted, however, that "these 
concealments" did not of themselves warrant condemna- 
tion, and the court then proceeded "to ascertain the real 
destination of the cargo." "If," said the court, "the real 
intention of the owners was that the cargo should be 
landed at Nassau and incorporated by real sale into the 
common stock of the island, it must be restored, notwith- 
standing this misconduct. What, then, was this real 
intention ? " 

That some other destination than Nassau was intended 
was inferred, first, from the fact that by the bills of lading 
and the manifest the cargo was consigned to order or 
assigns. This was treated as a " negation " that a sale was 
intended to anyone at Nassau, since, if such a sale had 
been intended, the goods would most likely have been 
consigned for that purpose to some established house 
named in the bills of lading. This inference was strength- 
ened by the fact that the agent of the owners at Nassau 
was to receive the property and execute the instructions 
of his principals. 

These instructions were not in evidence; but they might, 
said the court, be collected in part from the character of 
the cargo. A part of it, small in comparison with the 
whole, consisted of arms and munitions of war. A some- 
what larger part consisted of articles useful and necessary 
in war. These portions being contraband, the residue 
belonging to the same owners must share their fate. 
"But," declared the court, " we do not now refer to the 
character of the cargo for the purpose of determining 
whether it was liable to condemnation as contraband, but 
for the purpose of ascertaining its real destination; for, 
we repeat, contraband or not, it could not be condemned, 
if really destined for Nassau and not beyond; and, contra- 
band or not, it must be condemned if destined to any rebel 
port, for all rebel ports were under blockade. 

68 "continuous voyages" — NOTES. 

"Looking at the cargo with this view we find that a 
part of it was specially fitted for use in the rebel military 

service and a larger part, though not so specially fitted, 
was yet well adapted to such use. Under the first head 
we include the sixteen dozen swords, and the ten dozen 
rifle bayonets, and the forty-five thousand navy buttons, 
and the one hundred and fifty thousand army buttons; and 
under the latter the seven bales of army cloth and the 
twenty bales of army blankets and other similar goods. 
We can not look at such a cargo as this and doubt that a 
considerable portion of it was going to the rebel States, 
where alone it could be used; nor can we doubt that the 
whole cargo had one destination. 

•• Now if this cargo was not to be carried to its ultimate 
destination by the Springbok (and the proof does not war- 
rant us in saying that it was), the plan must have been to 
send it forward by transshipment. And we think it evi- 
dent that such was the purpose. We have already referred 
to the bills of lading, the manifest, and the letter of 
Speyer & Haywood as indicating this intention, and the 
same inference must be drawn from the disclosures by the 
invocation that Isaac, Campbell & Co. had before sup- 
plied military goods to the rebel authorities by indirect 
shipments and that Begbie was the owner of the Gertrwl 
and engaged in the business of running the blockade. 

" If these circumstances were insufficient grounds for a 
satisfactory conclusion, another might be found in the 
presence of the Gertrudr in the harbor of Nassau with 
undenied intent to run the blockade about the time when 
the arrival of the Spri ixjhol- was expected there. It seems 
to us extremely probable that she had been sent to Nassau 
to await the arrival of the Springbok and to convey her 
cargo to a belligerent and blockaded port, and that she 
did not so convey it only because the voyage was inter- 
cepted by the capture. 

"All these condemnatory circumstances must be taken 
in connection with the fraudulent concealment attempted 
in the bills of lading and the manifest and with the very 
remarkable fact that not only has no application been made 
by the claimants for Leave to take further proof in order 
to furnish some explanation of these circumstances, but 


that no claim, sworn to personally, by either of the claim- 
ants, has ever been tiled. 

** Upon the whole case we can not doubt that the cargo 
was originally shipped with intent to violate the blockade; 
that the owners of the cargo intended that it should be 
transshipped at Nassau into some vessel more likely to suc- 
ceed in reaching safely a blockaded port than the S]yring- 
bok; that the voyage from London to the blockaded port 
was, as to cargo, both in law and in the intent of the par- 
ties, one voyage; and that the liability to condemnation, 
if captured during any part of that voyage, attached to 
the cargo from the time of sailing." 

In conformity with this opinion the decree of condem- 
nation of the district court was reversed as to the ship, 
but without costs or damages to the claimants, and was 
affirmed as to the cargo. 

Matamoras cases — the Peter hoff. — The Mexican town of 
Matamoras, situated on the Rio Grande, nearly opposite 
Brownsville, in Texas, which formed one of the Confeder- 
ate States, offered obvious advantages as a base of contra- 
band trade. 

The steamer Peterhoff 'was captured Feb. 25, 1863, near 
the island of St. Thomas, D. W. L, by the U. S. S. Van- 
derbilt, and was condemned by the United States district 
court for the southern district of New York, together with 
her cargo, for attempt to break the blockade. From this 
sentence an appeal was taken to the Supreme Court. 1 

The Peterhoff wsls fully documented as a British mer- 
chant steamer upon a voyage, as shown by her manifest, 
shipping list, clearances, and other papers, from London, 
England, to Matamoras. in Mexico. The bills of lading 
all stipulated for the delivery of the goods "off the Rio 
Grande, Gulf of Mexico, for Matamoras," adding that 
they were to be taken from alongside the ship, provided 
that lighters could cross the bar at the mouth of the river. 
The cargo was miscellaneous, and shipped by different 
persons, all but one of whom were British subjects, and a 
part of it belonged to the owner of the vessel. Of the 
numerous packages a certain number contained articles 

'The Peterhoff (1866), 5 Wallace. 28. 

70 "continuous voyages" — NOTES. 

useful for military purposes during war. Among them 
were 36 cases of artillery harness, 14.450 pair of " Blucher" 
hoots. 5,580 pair of "government regulation grey blan- 
kets," 95 casks of horseshoes of large size, suitable for 
cavalry service, and 52,000 horseshoe nails. There were 
also considerable amounts of iron, steel, shovels, spades, 
blacksmiths' bellows and anvils, nails, and leather, and an 
assorted lot of drugs— 1,000 pounds of calomel, large 
quantities of morphine, 265 pounds of chloroform, and 
2,640 ounces of (pi 'mine. Owing to the blockade of the 
coast, drugs, and especially quinine, were greatly needed 
in the Southern States. 

With the exception of a portion consigned to the order 
of the master, which belonged to the owners of the vessel, 
the cargo was represented in agency or consigneeship 
chiefly by three different persons on board the vessel as 
passengers — Redgate, Bowden, and Almond — all natives 
of Great Britain, and at the time of the capture all British 
subjects, except Redgate, who had become a citizen of the 
United States, and who. before the outbreak of the war, 
resided in Texas. He stated that at the time of the cap- 
ture he intended to establish a mercantile house at Mata- 
moras, and that, had his "goods arrived there, they were 
to take the chances of the market." Bowden and Almond 
testified to substantially the same effect as to their re- 
spective ventures. During the war Matamoras, which 
lies on the Mexican side of the Rio Grande, nearly oppo- 
site the town of Brownsville, in Texas, had. by reason of 
the facilities which as a neutral port it offered for trade 
with the Confederacy, whose seaports were all blockaded, 
suddenly risen from the position of a place of no im- 
portance "into a great centre of commercial activity, 
rivalling the trade of New York or Liverpool." 

The opinion of the Supreme Court in the case of the 
Peterhoff was delivered by Chief Justice Chase. He 
stated that the record satisfied the court that the voyage 
of the ship " was not simulated." She was " in the proper 
course of a voyage from London to Matamoras;-' nor was 
there any evidence which fairly warranted the belief 
"that the cargo had any other direct destination." The 
proposed delivery of the cargo off the mouth of the Rio 


Grande into lighters for Matamoras was **in the usual 
course of trade," since it was impossible for a vessel of 
heavy draught to enter the river. "It is true," said the 
court, "that by these lighters some of the cargo might be 
conveyed directly to the blockaded coast; but there is no 
evidence which warrants us in saying that such convey- 
ance was intended by the master or the shippers. We 
dismiss, therefore, from consideration, the claim, suggested 
rather than urged in behalf of the Government, that the 
ship and cargo, both or either, were destined for the 
blockaded coast." 

But it was maintained in argument by counsel for the 
captors (1) that trade with Matamoras was, at the time of 
the capture, made unlawful by the blockade of the mouth 
of the Rio Grande; and, if this was not the case, (2) that 
the ulterior destination of the cargo was Texas and the 
other States in rebellion, and that this ulterior destination 
constituted a breach of the blockade. 

On these points the court held — 

1. That "the mouth of the Rio Grande was not included 
in the blockade of the ports of the rebel States, and that 
neutral commerce with Matamoras, except in contraband, 
was entirely free." 

2. That "neutral trade to or from a blockaded country 
by inland navigation or transportation," is lawful; and, 
"therefore, that trade, between London and Matamoras, 
even with intent to supply from Matamoras goods to 
Texas, violated no blockade, and can not be declared un- 
lawful." " Such trade," said the court, "with unrestricted 
inland commerce between such a port and the enemy's 
territory, impairs undoubtedly and very seriously impairs 
the value of a blockade of the enemy's coast. But in 
cases such as that now in judgment, we administer the 
public law of nations, and are not at liberty to inquire 
what is for the particular advantage or disadvantage of 
our own or another country." 

The question of breach of blockade being thus excluded, 
the court proceeded to consider the question of the desti- 
nation of the cargo in connection with the question of 
contraband. Taking up the usual classification of articles 
with reference to this question — (1) those used primarily 

7*2 "continuous voyages" — NOTES. 

for purposes of war. (2) those used for purposes of war or 
of peace according to circumstances, and (3) those used 
exclusively for peaceful purposes— the court observed 
that a considerable part of the cargo was of the third 

class and need not be further considered. A large part. 
perhaps, was of the second class, but as it was "not 
proved * * :: " to have been actually destined to belliger- 
ent use."' it therefore could not. said the court. " be treated 
mtraband." " Another portion was. in our judgment," 
continued the court. " destined directly to the rebel mili- 
tary service. This portion of the cargo consisted of the 
cases of artillery harness and of articles described in the 
invoices as 'men's army bluchers.' 'artillery boots.' and 
* government regulation gray blankets." These goods 
come fairly under the description of goods primarily and 
ordinarily used for military purposes in time of war. 
They make part of the necessary equipment of an army." 

With regard to these articles, which were adjudged to be 
condemned as contraband, the language of the court is to 
be specially noted. " It is true that even these goods." said 
the court. " if really intended for sale in the market of 
Matamoras, would be free of liability: for contraband may 
be transported by neutrals to a neutral port, if intended 
to make part of its general stock in trade. But there is 
nothing in the case which tends to convince us that such 
was their real destination, while all the circumstances indi- 
cate that these articles, at least, were destined for the use 
of the rebel forces then occupying Brownsville, and other 
places in the vicinity. 

" And contraband merchandise is subject to a different 
rule in respect to ulterior destination than that which ap- 
plies to merchandise not contraband. The latter is liable 
to capture only when a violation of blockade is intended; 
the former when destined to the 4 hostile country, or to the 
actual military or naval use of the enemy, whether block- 
aded or not. * * Hence, while articles, not con- 
traband, might be sent to Matamoras and beyond to the 
rebel region, where the communications were not inter- 
rupted by blockade, articles of a contraband character, 
destined in fact to a State in rebellion, or for the use of 
the rebel military forces, were liable to .capture though 


primarily destined to Matamoras. We are obliged to eon- 
elude that the portion of the cargo which we have charac- 
terized as contraband must be condemned." 

Restitution of the ship was decreed on payment of costs 
and expenses. This condition was imposed, notwithstand- 
ing the finding that her destination was neutral, (1) because 
the master, when brought to by the Vanderbilt, refused to 
send his papers on board; (2) because papers were destroyed 
on board the ship at the time of the capture ; and (3) because 
it was the duty' of the captors, since contraband was found 
on board "destined to the enemy," to bring the ship in for 

Case of the Science. — In two other Matamoras cases, de- 
cided at the same term, the Supreme Court decreed resti- 
tution, in the absence of proof of actual enemy destina- 
tion. The first of these was that of the Science. 1 Chief 
Justice Chase, delivering the opinion of the court, stated 
that the evidence was " clear that the vessel and her out- 
ward cargo were neutral property, destined to neutral 
consignees at Matamoras, and that the cargo had actually 
been delivered as consigned." " Some of the proof," the 
court added, "tended to show that a portion of this cargo 
consisted of Confederate uniform cloth; but there was 
none showing destination to enemy territory or immediate 
enemy use. There was, therefore, nothing in the charac- 
ter of the vessel or of the outward cargo which warrants 

Case of the Volant. — At the same time the court decided 
the case of the Volant* another Matamoras case. The 
Chief Justice, delivering the opinion, stated that the proof 
showed that the vessel was the property of a neutral mer- 
chant of the island of Jersey, documented as a British 
merchantman, and regularly cleared from London to 
Matamoras. The cargo was shipped by the charterers of 
the vessel for neutral owners, and consigned to neutrals at 
Matamoras, but had not been discharged at the time of 
capture. " It consisted," said the court, "in part of bales 
of Confederate uniform cloth, of the same mark and of 
corresponding numbers with like goods found on the 

J 5 Wallace, 178. 2 5 Wallace, 179. 

74 "continuous voyages" — notes. 

Science/ but there is no proof of unlawful destination." 
The decree of the court below, condemning the ship and 
cargo, was accordingly reversed. 

Hall, referring to the eases in which the English prize 
courts have applied the doctrine of continuous voyages, 
states that those courts "were careful not to condemn 
until what they conceived to be the hostile act was irrev- 
ocably entered upon" by departure "from the port of 
colorable importation to the enemy country;" and he 
declares that "the American decisions have been univer- 
sally reprobated outside the United States, and would 
probably now find no defenders in their own country." 1 
He does not cite, however, any case in which it was held 
by an English court that the performance of the process 
of "colorable importation" was a prerequisite to con- 
demnation, nor does he exhibit his usual accuracy in his 
censure of the American decisions, which found, as will 
be shown, a defender in his own Government. 

In the cases of the Swam and the IIoj> r .'- neutral Ameri- 
can vessels were condemned by Sir William Scott for car- 
rying, on voyages from Bordeaux to the neutral port of 
New York, official dispatches destined to French authori- 
ties in the West Indies. In neither case does it appear to 
have been alleged that the apparent destination of the 
vessel was not her true and final destination, or that she 
was specially employed by the French Government. 
Nevertheless, it was held that the transportation of the 
dispatches toward their belligerent destination was an 
unneutral and prohibited service. 

Returning to the American decisions, it appears that 
on February 20, 1864, Earl Russell instructed Lord 
Lyons, then British minister at Washington, that Her 
Majesty's Government had considered the judgment of 
Judge Betts in the case of the Springbok, in communi- 
cation with the law officers of the Crown, and saw no 
reason to change the opinion that they '"could not officially 
interfere in the matter, but that the owners must be left 
to the usual and proper remedy of an appeal. On the con- 
trary." declared Earl Russell, "a careful perusal of this 

1 Int Law, 4th ed., 695, note. 

2 The Caroline, 6 ('. Rob., 641, note. 


elaborate and able judgment, containing the reasons of the 
judge, the authorities cited by him in support of it, and 
the important evidence properly invoked from the cases of 
the Stephen Hart and the Gertrude (which Her Majesty's 
Government have now seen for the first time) in which the 
same parties were concerned', goes so far to establish that 
the cargo of the Springbok, containing a considerable por- 
tion of contraband, was never really and bona fide destined 
for Nassau, but was either destined merely to call there or 
to be immediately transshipped after its arrival there 
without breaking bulk and without an}^ previous incorpo- 
ration into the common stock of that colony, and then to 
proceed to its real destination, being a blockaded port. 
The complicity of the owners of the ship, with the design 
of the owners of the cargo, is, to say the least, so probable 
on the evidence that there would be great difficulty in con- 
tending that this ship and cargo had not been rightly 

February 5, 1868, the attorney of the owners of the 
cargo transmitted to Lord Stanley, then foreign secretary, 
the sentence of the Supreme Court, by which the condem- 
nation of the cargo was affirmed and a decree of restitution 
entered as to the vessel. He also enclosed a copy of the 
joint opinion of Messrs. George Mellish, Q. C, and W. 
Vernon Harcourt, Q. C. , holding the sentence to be erro- 
neous and unjust, and stated that in that opinion he had 
no doubt the law officers of the Crown would concur. He 
asked that compensation be demanded for the owners of 
the cargo from the United States for the condemnation of 
their property. 

This petition was referred to the law officers of the 
Crown, and on July 24, 1868, the foreign office, after an 
extended review of the papers in the case, including the 
opinion of counsel, announced the conclusion that Her 
Majesty's Government would not be "justified, on the 
materials before them, in making any claim "for compen- 
sation. With reference to the opinion of counsel, the 
foreign office observed that it found fault with the judg- 
ment because one ground taken by the court as justifying 
the conclusion that Nassau was not the real destination of 
the cargo, was derived from the forms of the bills of 


lading, which, although they did not disclose the contents 
of the packages or name any consignee, the cargo being 
deliverable to ** order or assigns," were, it was maintained. 
on the testimony of some of the principal brokers of 
London, "in the usual and regular form of consignment 
to an agent for sale at such a port as Nassau." No doubt, 
said the foreign office, the form was usual in time of peace: 
but a practice which might be "perfectly regular in time 
of peace under the municipal regulations of a particular 
state, will not always satisfy the laws of nations in time 
of war. more particularly when the voyage may expose 
the ship to the visit of belligerent cruisers." Thus it was 
laid down by Dr. Lushington, in the case of the Abo, 1 that 
where cargo is shipped flagrante hello, the bills of lading 
on their face ought to express for whose account and risk 
the property was shipped. The ship's manifest in the 
present case was. said the foreign office, equally silent on 
the subject: and. "haying regard to the very doubtful char- 
acter of all trade ostensibly carried on at Nassau during 
the late war in the United States, and to many other cir- 
cumstances of suspicion before the court. Her Majesty's 
Government are not disposed to consider the argument of 
the court on this point as otherwise than tenable." 

A> to the argument of counsel that the character of the 
cargo, being fitted for blockade running, was a proof that 
it was destined for Nassau, which was the great entrepot 
for contraband of war. the foreign office declared that it 
was one "to which much weight cannot be attached." 
Under "all the circumstances of time and place," and in 
the absence of evidence from the claimants as to what was 
to become of the goods on their arrival at Nassau, Her 
Majesty's Government thought "the court was entitled to 
draw the inference that the consignors of the goods in- 
tended to be parties to the immediate transshipment and 
importation of these goods into a blockaded port, on their 
being taken out of the Spri/ngboh" 

In connection with the contention of counsel that the 
court erred in its statement that the Gertrude was at Nas- 
sau with undenied intent to run the blockade about the 

1 Sj.inks, 350. 


time when the Springbok was expeeted to arrive there, the 
foreigp office observed that the decision of the court did' 
not appear to be based on that ground, but found "that 
the owners of the cargo intended that it should be trans- 
shipped at Nassau in some vessel more likely to succeed in 
reaching a blockaded port than the Sjyringbok" As a fact, 
said the foreign office, the vo} T age of the Gertrude appeared 
to have been delayed, but "when she did reach Nassau, 
after the capture of the Springbok, she took on board a 
contraband cargo, upon which the marks and numbers cor- 
responded to some extent with certain marks and numbers 
on many packages in the Springbok, and she was captured 
and condemned without any attempt being made to resist 
such condemnation." 1 

In the case of the Peterhoff, it appears that the British 
consul at New York on August 3, 1863, transmitted to his 
Government a copy of Judge Betts's decree condemning the 
vessel and her cargo, and stated that the judge would later 
deliver inextenso his reasons for the condemnation. With 
reference to the decree, Earl Russell instructed Lord 
Lyons, Oct. 31, 1863, that Her Majesty's Government, 
having considered the judicial proceedings, in communica- 
tion with the law officers of the Crown, adhered to the opin- 
ion that any official intervention in the present stage of the 
case was inexpedient. ' k The evidence," said Earl Russell, 
u is certainly not 'clearly and unequivocally inadequate to 
sustain the sentence,' but, on the contrary, in various par- 
ticulars tends to sustain it; such as the false swearing of 
the master or, at least, the palpable equivocation and dis- 
ingenuousness of his evidence; the throwing overboard of 
papers, the contents of which are said to be unknown at 
the moment of capture; the incredible and conflicting sug- 
gestions (in the absence of a true explanation which the 
claimants might have obtained) as to their contents, and 
the character of certain portions of the cargo." 

April 22, 1864, the full opinion of Judge Betts in the 
case of the Peterhqff having been received, as well as that 
of Judge Marvin in the cases of the Dolphin and the Pear/. 
Earl Russell instructed Lord Lyons, after consulting the 

a Blue Book, Miscellaneous, No. 1 (1900). 

78 "continuous voyages" — notes. 

law officers of the Crown, that Her Majesty's Government 

did not consider that the decisions in the cases of the P< i< r- 
hoff and the Dolphin culled "for any intervention on their 
part. Her Majesty's Government," continued Earl Rus- 
sell, ** without adopting all the reasons assigned in these 
judgments (in some of them, indeed, they do not concur), 
are not prepared to say that the decisions themselves, 
under all the circumstances of the cases, are not in harmony 
with the principles of the judgments of the English prize 
courts. With respect to the case of the Pearly Her Maj- 
esty's Government consider that the course adopted by the 
judge is fair and equitable." 1 

In the cases of the Springbok, Peterhoff, l)<>lj>lini. and 
Pearl, claims for compensation were made before the 
international commission under Art. XIII of the Treaty 
of Washington of May 8, 1871. None was presented in 
the case of the Bermuda. 

In the case of the Springbok the commission unani- 
mously disallowed all claims on account of the cargo. 
An award of $5,065 was made as damages for the deten- 
tion of the vessel from the date of the decree of the dis- 
trict court till her discharge under the decree of the 
Supreme Court. 2 

The Peterhoff claims were all unanimously disallowed. 3 

The eases of the Dolphin and the Pearl were similarly 
disposed of/ 

The commission consisted of the Hon. J. S. Frazer, 
sometime a justice of the supreme court of the State of 
Indiana; the lit. Hon. Russell Gurney, a member of Her 
Majesty's privy council and recorder of London, and 
Count Corti, Italian minister at Washington." 

When we consider on the one hand the not infrequent 
censure of the American decisions as introducing novel 
and unwarranted doctrines, and on the other hand the 
contrary opinion expressed by the British Government 
and implied by the action of the international commision, 

x Blue Book, Miscellaneous No. 1 (1890). 

2 Int. Arbitrations, III, 392 

3 Int. Arbitrations III, 383->-3843. 

1 Hale - - Report, 92, 115. 

5 Int. Arbitration.-. I. 690 


it seems not inappropriate to recall the words of Lord 
Stowell: 1 

"All law is resolvable into general principles: The cases 
which may arise under new combinations of circumstances, 
leading to an extended application of principles, ancient 
and recognized, by just corollaries, may be infinite; but 
so long as the continuity of the original and established 
principles is preserved pure and unbroken, the practice is 
not new, nor is it justly chargeable with being <m innova- 
tion on the ancient law, when, in fact, the court does 
nothing more than apply old principles to new circum- 

III. Ddagoa Bay: German coses. — An interesting and 
important discussion of questions of contraband and con- 
tinuous voyage may be found in the correspondence 
between Germany and Great Britain growing out of the 
seizure and detention by British cruisers of the three 
German east African mail steamers Bundesrath, General, 
and Hersog. 

The first case was that of the Bundesrath. As early as 
Dec. 5, 1899, Rear Admiral Sir R. Harris reported that that 
vessel had sailed from Aden for DelagoaBay ; that "ammu- 
nition " was "suspected, but none ascertained;" and that 
she carried "twenty Dutch and Germans and two supposed 
Boers, three Germans and two Austrians, believed to be 
officers, all believed to be intending combatants, although 
shown as civilians; also twenty-four Portuguese soldiers." '-' 
On the 29th of December she arrived at Durban in charge 
of the British cruiser Magicienne. The German Govern- 
ment requested her release on the ground, among others, 
of "positive assurances** given by the Hamburg Company 
that she carried no contraband. Lord Salisbury replied 
that she "was suspected to be carrying ammunition in her 
cargo, and that she had on board a number of passengers 
believed to be volunteers for service with the Boers," but 
that no details as to the grounds of the seizure had been 
received. Subsequently the British Government was 
advised by Admiral Harris that the ship changed the 

1 The Atalanta (1808) , 6 C. Rob., 440, 458. 
-Africa, No. 1 (1900), 1. 

6482—01 6 


position of bercargoon being chased; tha< a partial search 
had revealed some sugar consigned to a person at Delagoa 
Bay, and some railway sleepers and small trucks consigned 
to a tirm at the same place, hut Labelled Johannesburg; 
and that a further search was expected to disclose "arms 
among baggage of Germans on board, who state openly 
they are going to the Transvaal." The German Govern- 
ment declared that it had no knowledge of more than two 
officers having proceeded to the Transvaal, where they 
were unable to obtain commands. On Jan. 3, 1900, the 
British Government directed that an application be made 
to the prize court for the release of the mails; that, if the 
application should be granted, thev be handed over to the 
German consul, to be hastened to their destination by a 
British cruiser if available, or by mail steamer, or other- 
wise; and that every facility for proceeding to his desti- 
nation should be afforded "to any passenger whom the 
court considers innocent." The search of the steamer was 
continued for nine days, but no contraband was found. 
Jan. 5 the mails and passengers were released by order of 
the prize court, and were 4 taken on board the German 
warship Condor f or Delagoa Bay. The steamer and her 
cargo was discharged on the 18th of January. 

Dec. 16, 1899, the Admirality communicated to the for- 
eign office two telegrams, one from the commander in 
chief of the Mediterranean Station, and the other from the 
commander in chief at the Cape of (rood Hope, in relation 
to the IL rz<>(j. One of the telegrams conveyed a report 
that this steamer, though she had declared that there were 
no troops on board, had left the Suez Canal for South 
Africa with " a considerable number of male passengers, 
many in khaki, apparently soldiers;" the other spoke of 
"a number of passengers dressed in khaki," and asked 
whether they could be legally removed. Dec. '21 the sen- 
ior naval officer at Aden reported her as having sailed on 
the 18thfor Delagoa Bay " convey ing, probably for service 
in | the] Transvaal, about forty Dutch and German medical 
and other officers and nurses." Jan. 1. 1900, the Admi- 
ralty telegraphed to Admiral Harris: "Neither the Herzog 
nor anv other German mail steamer should be arrested on 


suspicion only until it becomes obvious that the Bundes- 
rath is carrying contraband." The Berzog was brought 
into Durban on the 6th of January. It seems that she 
had among her passengers three Red Cross expeditions, 
one of which, however, had no official character nor any 
connection with the regular Red Cross societies. Jan. 7 
the Admiralty directed her immediate release unless guns 
or ammunition were revealed by the summary search. To 
this there was added next day the further proviso, u unless 
provisions on board are destined for the enemy's govern- 
ment or agents, and are also for the supply of troops or 
are specially adapted for use as rations for troops." The 
steamer was released on the 9th of January. 

Jan. 1, 1900, the senior naval officer at Aden reported 
that the steamer General was detained "on strong sus- 
picion " and was undergoing search. The German Govern- 
ment protested, and asked that explicit instructions be 
given to British officers w% to respect the rules of inter- 
national law, and to place no further impediments in the 
way of the trade between neutrals " — a request to the 
form and imputations of which the British Government 
strongly excepted. The Admiralty had previously tele- 
graphed to Aden that it was undesirable to detain the 
steamer if she carried the mails. It appears that she was 
detained on "information" that various suspicious articles 
were on board for Delagoa Bay, including boxes of ammu- 
nition stowed in the main hold, buried under reserve 
coal. The manifest contained several large cases of rifle 
ammunition for Mauser. Mannlicher, and sporting rifles, 
consigned to Mombasa, but this consignment was believed 
to be bona fide. After a search, w-hich included the 
removal of 1,200 tons of cargo and the digging out of a 
large quantity of coal — a task which occupied the 3Far<i- 
thxyrCs ship's company, assisted by 100 coolies, several 
days — no contraband was found. The British Govern- 
ment ordered the vessel's release on the 7th of January. 
but, as time was requisite for the replacement of the 1,200 
tons of cargo which had then been removed, she was 
unable to sail till the 10th. She had on board a consider- 
able number of Dutch and German passengers for the 


Transvaal, in plain clothes, hut "of military appearance," 
some of whom were believed to be trained artillerymen, 
though it was stated by the British officials that proof of 
this suspicion could he obtained only by searching their 
baggage. Lord Salisbury afterwards stated that "there 
was no sufficient evidence as to their destination to justify 
further action on the part of the officers conducting the 
search. " 

With the release of the ships and their passengers and 
cargoes, and an expression of regret by Great Britain 
for what had occurred, the subject in controversy was 
arranged as follows: 

1. The British Government admitted in principle the 
obligation to make compensation, and expressed its readi- 
ness to arbitrate the claims should an agreement by other 
means be impracticable. 

'2. Instructions were issued to prevent the stopping and 
searching of vessels at Aden or at any point equally or 
more distant from the seat of war. 

3. It was agreed provisionally, till another arrangement 
should be made, that German mail steamers should not in 
future be searched on "suspicion only." By a mail 
steamer, however, was understood not every steamer that 
had a bag of letters on board, but a steamer Hying the 
German mail Hag. 

On the other hand, the German Government substan- 
tially modified its original position with regard to the 
questions of international law involved, hi a note to 
Lord Salisbury, of January 4, 1900, Count Hatzfeldt, 
German ambassador at London, declared it to be the opin- 
ion of his Government that prize proceedings in the case 
of the Bundesrath were not justified, for the reason that, 
no matter what may have been on board, "there could 
have been no contraband of war. since, according to recog- 
nized principles of international law. there can not be con- 
traband of war in trade between neutral ports." He also 
declared this to be the view taken by the British Govern- 
ment in 1863 as against the judgment of the American 
prize court in the case of the Springbok; and by the 
British Admiralty in the Manual of Naval Prize Law. in 


Lord Salisbury, in his reply of the 10th of Januarj 7 , 
pointed out the error of the German Government as to the 
ease of the Springbok. As to the Manual of Naval Prize 
Law, he declared that, while its directions were for prac- 
tical purposes .sufficient for wars such as Great Britain had 
waged in the past, they were "quite inapplicable to the 
case which has now arisen of war with an inland state, 
whose only communication with the sea is over a few miles 
of railway to a neutral port." He also adverted to the fact 
that the author of the Manual, in another part of the work 
than that cited, had discussed Cb the question of destination 
of the cargo, as distinguished from destination of the ves- 
sel, in a manner by no means favorable to the contention 
advanced in Count Hatzfeldt's note," and that Professor 
Holland, who edited a revised edition of the Manual in 
1888, had, in a recent letter in The Times, expressed an 
opinion altogether inconsistent with that which the German 
Government had endeavored to found on its words. Lord 
Salisbury stated that, in the opinion of Her Majesty's Gov- 
ernment, the passage cited from the Manual, "that the 
destination of the vessel is conclusive as to the destination 
of the goods on board," could not apply to "contraband 
on board of a neutral vessel if such contraband was at the 
time of seizure consigned or intended to be delivered to 
an agent of the enemy at a neutral port, or, in fact, des- 
tined for the enemy's country." and that the true view in 
regard to such goods, as Her Majesty's Government be- 
lieved, was correctly stated bv Bluntschli, as follows: "If 
the ships or goods are sent to the destination of a neutral 
port only the better to come to the aid of the enemy, there 
wi 11 be contraband of war and confiscation will be justified. " 1 

In his speech in the Reichstag, January 19. 1900, announc- 
ing the arrangement with Great Britain, Count von Billow 
laid down certain propositions as constituting a system of 
law wmich should be operathe in practice, and a disregard 
of which would constitute a breach of international treaties 
and customs. One of these propositions was that by the 

1 Si les navires on niarchandises ne sont expedies a destination d'un 
port nentre que pour mieux venir en aide a I'ennemi il y aura contre- 
bande de guerre et la confiscation sera justified. (Droit Int. Coditie, 
•ed. 1874, §813.) 

84 "continuous voyages" — NOTES. 

term contraband of war "only such articles or persons are 
to be understood as arc suited for war. and at the same time 
are destined for one of the belligerents." Count von Bulow 
added that the Imperial Government had striven from the 
outset to induce the English Government, in dealing wit] 
neutral vessels consigned to Delagoa Bay, "to adhere to 
that theory of international law which guarantees the 
greatest security to commerce and industry, and which 
rinds expression in the principle that, for ships consigned 
from neutral states to a neutral port, the notion of con- 
traband of war simply does not exist. To this the English 
Government demurred. We have reserved to ourselves 
the right of raising the question in the future, in the first 
place, because it was essential to us to arrive at an expe- 
ditious solution of the pending difficulty, and, secondly. 
because, in point of fact, the principle here set up by us 
has not yet met with universal recognition in theory and 

IV. Delagoa Bay: American cases. — Contemporaneously 
with the British-German controversy, a question arose 
between the United States and Great Britain as to the 
seizure of various articles shipped at New York, some of 
them on regular monthly orders, by American merchants 
and manufacturers on the vessels Beatrice, Maria, and 
Mashona, which were seized by British cruisers while on 
the way to Delagoa Bay. These articles consisted chiefly 
of flour, canned meats, and other food stuffs, but also 
embraced lumber, hardware, and various miscellaneous 
articles, as well as quantities of lubricating oil, which were 
consigned partly to the Netherlands South African Kail- 
way, in the Transvaal, and partly to the Lourenco Marques 
Railway, a Portuguese concern. It was at first supposed that 
the seizures were made on the ground of contraband, and 
with reference to this possibility the Government of the 
United States declared that it could not recognize their 
validity "under any belligerent right of capture of provi- 
sions and other goods shipped by American citizens in 
ordinary course of trade to a neutral port." ' 

It soon transpired, however, that the Beatrice and 

! Mr. Hay, Sec. of State, to Mr. Choato. ambassador at London, tcl.. 
.Ian. 2, L900, S. Doc. 17:-;, 56 Cong., 1 eess., 1:5-14. 


Mashona, which were British ships, and the Maria, which, 
though a Dutch ship, was at first supposed to be British, 1 
were arrested for violating a municipal regulation for- 
bidding British subjects to trade with the enemy, the 
alleged offense consisting in the transportation of goods 
destined to the enemy's territory. The seizure of the car- 
goes was declared to be only incidental to the seizure of 
the ships. As to certain articles, however (particularly 
the oil consigned to the Netherlands South African Rail- 
way in the Transvaal), an allegation of enemy's property 
was made; but no question of contraband was raised and 
it was eventually agreed that the United States consul- 
general at Cape Town should arrange with Sir Alfred 
Milner, the British high commissioner, for the release or 
purchase Ixy the British Government of any American- 
owned goods, which, if purchased, were 1 to be paid for at 
the price they would have brought at the port of destina- 
tion at the time they would have arrived there in case the 
voyage had not been interrupted. 2 

In the course of the correspondence Lord Salisbury 
thus defined the position of Her Majesty's Government on 
the question of contraband: 

"Foodstuffs, with a hostile destination, can be consid- 
ered contraband of war only if they are supplies for the 
enemy's forces. It is not sufficient that they are capable 
of being so used; it must be shown that this was in fact 
their destination at the time of seizure." :! 

Mr. Thomas Gibson Bowles, in a letter in the London 
Times, January -i, 1900, says: "In July, 1896, the Dutch 
steamer Doelwijk took a cargo of arms and ammunition, 
destined to Abyssinia, then at war with Italy, from the 
neutral port of Rotterdam to the neutral (French) port of 
Jibutil, in the Gulf of Tajura. The steamer being cap- 
tured by the Italian, cruiser Etna and brought in for adju- 
dication, was condemned as lawful prize by the prize court 
at Rome on December 8, 1896." 4 

j S. Doc. 173, 56 Cong., I sess., 10. 

2 Mr. Hay, Sec. of State, tc Mr. Toomey, March 2, 1900; to the Bal- 
lard & Ballard Co., March 9, 1900; to Mr. Newman, March 1:5, 1900: 
243 MS. Dom. Let., 317, 412, 488. 

3 S. Doc. 173, 56 Cong., 1 sess., 29. 

4 S. Doc. 173, 56 Cong., 1 sess., 21-22. 


Two countries, on the verge of war. summon home all 
their military and naval officers. When war is declared, 
an officer of one of the belligerents, of high rank, whose 
presence is specially desired for important service, is on 
the high seas, as a passenger on a neutral ship, hound to 
an intermediate neutral port, where he intends to take 
passage by another vessel for a port in his own country, 
or to enter upon active 1 service on one of its men-of-war, 
should any call. 

May the ship on which the officer is sailing be captured 
as prize by a cruiser of the enemy, or may the officer be 
taken out and the ship he permitted to proceed? 


The answer to the foregoing question involves the con- 
sideration (1) of the right of a belligerent to prevent the 
transportation by a neutral ship of persons in the military 
service 4 of the enemy and (2) of the destination of the 
officer in the case stated. 

1. Right of the belligerent. — It is admitted that a neutral 
\ essel engaged in the carriage of persons in the service of a 
belligerent becomes liable to condemnation either when the 
belligerent "has so hired it that it has become a transport 
in his service and that he has entire control over it. or when 
the persons on board are such in number, importance, or 
distinction, and at the same time the circumstance's of their 
reception are such, as to create a reasonable presumption 
that the owner or his agent intend to aid the belligerent 
in his war.'' ' This rule leaves open the question as to the 
carriage of persons in the service of a belligerent by a neu- 
tral vessel in the ordinary course of trade. The view has 
been expressed that if such persons may be classed as con- 
traband the vessel may be seized and brought in for adju- 
dication: but that if the}' may not be so classed the vessel 
in which they are traveling remains a ship under neutral 

1 Hall, International Law, 4th ed., |>. 701. 


jurisdiction which has not been brought by the conduct of 
the persons having control over it within the scope of those 1 
exceptional rights in restraint of trade which belligerents 
have been allowed to assume. 1 On the other hand, the 
view has been expressed that "it is incorrect to speak of 
the conveyance of persons in the military or civil employ- 
ment of a belligerent as if it were the same thing as the 
conveyance of contraband of war. or as if the same rules 
were applicable to it. It is a different thing, and the rule- 
applicable to it are different.**-' Apparently the great 
majority of writers treat the transportation of persons in 
the military service of the enemy either as a carriage of 
contraband or as an act analogous thereto It is proba- 
ble, however, that too much importance has been given to 
this somewhat technical aspect of the matter, since it seem- 
to be generally agreed that the carriage of such persons to 
a military destination is an enemy service far more impor- 
tant than the carriage of contraband. From the belliger- 
ent's point of view the importance of the act consists not 
in the manner or in the motive with which it may be done, 
but in the aid rendered to the enemy. AVhether the cir- 
cumstances of the transportation may or may not be such 
as to render the vessel liable tc confiscation, it is reasona- 
ble to hold that it is a right of the belligerent to take 
proper measures to prevent the enemy from receiving 
military aid under the protection of a neutral flag. As to 
the number of military persons necessary to subject the 
vessel to confiscation no rule can be laid down. "To 
carry a veteran general under some circumstances might 
be a much more noxious act than the conveyance of a 
whole regiment." 3 

'2. Destination. — Upon the facts stated, the destination 
of the officer in question, though he is immediately bound 
to a neutral port, appears to be in reality belligerent. It 
has been declared that even provisions which, although 
destined to the enemy's country, are not in general 
contraband, are to be deemed such " if destined for the 
army or navy of the enemy or for his ports of naval or 

1 Hall, International Law, 4th ed., \>. 705. 

-'Monntague Bernard, quoted by Hall, International Law, 4tli ed., 
p. 70S. 

3 Lawrence's Wheaton. edition of L863, p. 802. 


military equipment." 1 The destination of the officer in 
question for "military use" is. in the case stated, evident. 
Conclusion. — Although the case of the Trent related to 
persons in the diplomatic- and not in the military service 
of the enemy, a considerable majority of the authorities 
seem to concur in the opinion that the discussion which 
then took place resulted in a general understanding that in 
the absence of a treaty it is no longer allowable to take 
persons out of a neutral ship, hut mat theship herself, with 
the noxious persons on board, must be brought in for judi- 
cial examination. In the case stated, therefore, the ship 
should he seized and brought in with the officer on board. 
The fact that he embarked before the declaration of war 
doubtless would be taken into consideration by the prize 
court in making up its judgment. While such a circum- 
stance might materially affect the question of the ship's 
culpability, it would not appear to destroy, any more than 
in the case of contraband, the right of the belligerent to 
prevent his enemy from receiving military aid under cover 
of a neutral flag. 


The "Instructions to blockading vessels and cruisers." 
issued by the Navy Department during the war with Spain, 8 
contained the following clause: 

" 1»*>. A neutral vessel in the service of the enemy, in 
the transportation of troops or military persons, is liable 
to seizure." 

Stockton's Naval War Code contains a similar but ampli- 
fied provision as follow-: 

"Art. hi. Neutral vessels in the military or naval serv- 
ice of the enemy, or under the control of the enemy for 
military or naval purposes, are subject to capture or 

It is to be observed, however, that in this clause noth- 
ing is expressed as to the transportation of troops or mili- 
tary persons, the design appearing to be to clas> as a 
punishable act the performance by a neutral vessel of mili- 
tary or naval services for the enemy, perhaps under the 
latter's immediate employment or control. 

1 The Commercen, Wheaton, 382. 

neral Orders No. 4<»l\ June 20, 1898. 


Another provision of the code which may be cited here 
reads as follows: 

"Art. 35. Vessels, whether neutral or otherwise, carry- 
ing contraband of war destined for the enemy are liable 
to seizure and detention, unless treaty stipulations other- 
wise provide." 

This clause would cover the carriage of military persons. 
should such persons be admitted to fall within the category 
of contraband. 

In numerous treaties running- back to the seventeenth 
century, a provision may be found in connection with the 
subject of contraband to the effect that the persons of ene- 
mies shall not be taken out of free ships unless they are 
military persons in the actual service of the enemy. Such 
a clause may be found in various treaties entered into by 
the United States with foreign powers. Article XXIII 
of the treaty of amity and commerce with France of Feb- 
ruary 6, 1778 — the first treaty concluded by the United 
States — stipulated that free ships should make free goods, 
and in connection therewith that the same liberty should 
be extended to persons on board such ships, so that, "al- 
though they be enemies to both or either party, they are 
not to be taken out of that free ship unless they are sol- 
diers and in actual service of the enemies." A similar 
clause may be found in Article XIV of the treaty with 
France of September 30, 1800; in Article XI of the treaty 
with the Netherlands of October 8, 1782; in Article \11 
of the treaty with Sweden of April 3, 1783, and in various 
other early treaties, most of which have ceased to be in 
force. A similar provision has, however, been included 
by the United States in various recent or comparatively 
recent conventions. It may be found in Article XV of the 
treaty with New Granada (Colombia) of December 1'2. 
1816: in Article XVI of the treaty with Bolivia of May 
13, 1858; in Article XIX of the treaty with Hayti of No- 
vember 3, 1864; in Article XVI of the treaty with Italy 
of 1871; in Article XVII of the treaty with Peru of Au- 
gust 31, 1887. The usual form of the clause in these later 
treaties is that the freedom of the ship shall extend to per- 
sons on board, even if they be enemies, "unless they are 
officers or soldiers in the actual service of the enemv." 


Those clauses obviously imply that officers and soldier- 
in the actual service of the enemy may be taken out of a 
neutral ship without judicial proceedings. In this respect 
they hear the trace of their origin in a time when the 
authority and necessity of prize adjudication were not so 
well settled and understood as now; and when the claims 
of belligerents to interdict neutral intercourse with their 
enemies, and neutral carrying trade of persons and goods. 
were almost unlimited, and their practices loose and 
irregular. 1 Although they must be conceded to possess, 
in existing treaties, the force of law as between the con- 
tracting parties, their perpetuation is perhaps to be 
ascribed rather to the habit of employing ancient forms 
than to intelligent design, and it would therefore be unsafe 
to assume that the act which they authorize would be 
admitted to-day in the absence of an express treaty stipu- 
lation. Nevertheless, they clearly exemplify the opinion 
that the transportation on the high seas of military persons 
in actual service is an act the consummation of which the 
adverse belligerent has a right to prevent. 

Frequent reference is made to certain decisions of Sir 
William Scott in cases involving the carriage of military 
persons or of official dispatches. These cases are reviewed 
by Dana, in a note to his edition of Wheaton (pp. 040-643). 
His summaries are generally accurate, but in a few par- 
ticulars they do not appear to be borne out by the printed 
record, while in the cases relating to official dispatches he 
fails to disclose certain points of crucial importance. 

The principal cases decided by Sir William Scott in re- 
lation to the carriage of military persons are those of the 
Carolina, 4 0. Rob.. 256, April 30, 1802: the Friendship, 
6 C. Rob., 420. August 20, 1807; and the Orozemlo, 6 C. 
Rob., 430. September 24. 1807. In each of these eases the 
vessel was condemned as a transport of the enemy, en- 
gaged, either under contract or under duress, in the car- 
riage of military persons. In the case of the Friendship, 
Sir William Scott said: **It is asked, Will you lay down a 
principle that may be carried to the length of preventing a 
military officer, in the service of the enemy, from finding 

'Bernard, Case of The Trent, L4-20, cited by Dana, Note to 
Wheaton, <>57. 

SIR w. scott's opinions. 91 

his way home in a neutral vessel from America to Europe? 
If he was going merely as an ordinary passenger, as other 
passengers do, and at his own expense, the question would 
present itself in a very different form. Neither this court, 
nor any other British tribunal, has ever laid down the 
principle to that extent. This is a case differently com- 

The question of a military officer in the service of the- 
enemy "finding his way home in a neutral vessel" was 
thus expressly reserved. In the same case, however, Sir 
William Scott, referring to the transportation of military 
persons for a belligerent, observed: "Shall it be said 
then that this is an innoxious trade, or that it is an inno- 
cent occupation of the vessel? What are arms and ammu- 
nition in comparison with men, who may be going to be 
conve} T ed, perhaps to renew their activity on our shores ?" 
Discussing, in the case of the Orozembo, the question of 
the number of the persons carried, he declared: "Number 
alone is an insignificant circumstance * * *, since 
fewer persons of high quality and character may be of 
more importance than a much greater number of persons 
of lower condition. To send out one veteran general of 
France to take the command of the forces at Batavia. 
might be a much more noxious act than the conveyance of 
a whole regiment. The consequences of such assistance 
are greater; and therefore it is what the belligerent has a 
stronger right to prevent and punish." 

With regard to Sir William Scott's decisions as to the 
carriage of official dispatches, it is to be observed (1) that, 
in cases in which the vessel, or the vessel and cargo, were 
condemned, he proceeded not upon the ground of govern- 
mental employment, but simply upon that of the aid 
rendered, knowingly or fraudulently, to the enemy; and 
(2) that, in cases in which, knowledge or fraud not being* 
proved, the vessel was restored, the claimants were re- 
quired to pay the captors' expenses. Thus, in the case of 
The Rapid, Edward's Adm. 228, 1810, Sir William Scott, 
in pronouncing sentence of restitution, declared that "in 
this, as in every other instance in Avhich the enemy's dis- 
patches are found on board a vessel," the master had, " by 
failing to exercise the utmost jealousy," and in spite of 


the fact that his voyage was to terminate in a neutral 
country, "justly subjected himself to all the inconveni- 
ences of seizure and detention, and to all the expenses 

of those judicial inquiries which they have occasioned." 
Moreover, in reference to the nature and importance of 
the act in question, Sir William Scott on another occasion 
said: "The carrying of two or three cargoes of stores is 
necessarily an assistance of a limited nature: but in the 
transmission of dispatches may be conveyed the entire 
plan of a campaign, that may defeat all the projects of the 
other belligerents in that quarter of the world." * 

The practical futility of attempting to base a final solu- 
tion of the question under consideration upon the mere 
form of the agreement under which military persons in 
the service of the enemy are transported — whether they 
are carried under a contract with the government or merely 
as ••passengers" —ma\ r be vividly illustrated by a cor- 
respondence which took place during the revolution in 
Chile in 1891. 

In a dispatch to Lord Salisbury of Aug. 12, 1891, Mr. 
Kennedy. British minister at Santiago, reported that on 
the 20th ultimo he had learned from the agent of the 
Pacific Steam Navigation Company, a British concern, at 
Valparaiso, that the company's steamer Iberia had been 
detained by the authorities two days at Coronel, in order 
to embark soldiers for the Government, and that the com- 
pany's agent at Coronel, in explanation of his action, which 
was contrary to his instructions, stated that his objections 
were overruled by the governor of Coronel, who satisfied 
him that the soldiers were embarked under Mr. Kennedy's 
authority and by his orders. On August 3rd Mr. Ken- 
nedy wrote to Seilor Zanartu, the minister for foreign 
affairs, and requested an explanation of this statement of 
the governor, at the same time denying that he had given 
any orders or authority in the matter. 

Accompanying the dispatch there was a note of Mr. 
Kennedy to Senor Zanartu, of July 15, 1891, acknowleclg- 

'Thc Atalanta, »» C. Rob. 440, March 4, 1808. See also The Caro- 
line, 6 C. Rob. 461, April 1, 1808; The Constantia, ibid. ; The Susan, 
ibid.; The Hope, ibid.; The Madison, Edward's Adm., 224 (1810) ; The 
Rapid, Edward's Adm., 228 (1810). 


ing the receipt of a note of the latter, stating that the 
Government desired immediately to ship, by the Iberia, 
400, 000 silver dollars to Montevideo, and also a certain 
number of individuals, not possessed of any special char- 
acter, to Punta Arenas, and inquiring whether the money 
and the passengers could count, in case of seizure by the 
revolutionary squadron, on the protection of the British 
flag, in the sense of exacting the release of the individuals 
and the restitution of the specie. Mr. Kennedy, in reply, 
referred to similar assurances given by him in regard to 
British vessels carrying wheat to Europe, and to the con- 
currence of Her Majesty's senior naval officer on the station 
in them. 

There was also a letter of Mr. Prain. the company's 
agent at Valparaiso, to Mr. Kennedy of July 25. 1891, 
expressing surprise at the reports from Coronel, especially 
as Mr. Kennedy had warned him in a private letter not to 
receive "lighting men" on hoard as passengers, since by 
so doing the steamers would run the risk of getting into 
trouble in which Her Majesty's representatives would not 
be able to help them. 

In a letter to Mr. Prain of August 3, 1891. Mr. Ken- 
ned}' said: 

"I privately conveyed to you. in the interests of your 
company, the opinion expressed to me by Admiral Hotham 
on the general question of conveyance of troops, stores, 
etc., but I abstained from concurring officially in that opin- 
ion as regards the Pacific Steam Navigation Company." 

In his dispatch of August 12, Mr. Kenned}', referring 
to this correspondence, said: 

u As regards the alleged illegality of the above ship- 
ments as asserted by the Oppositionists and their sympa- 
thizers, I beg to state that the Pacific Steam Navigation 
Company are bound under their contract to carry soldiers, 
military stores, etc.. excepting in the case of war between 
two republics on this coast; but. as the Chilean Govern- 
ment are now engaged in the suppression of a rebellion, 
the above exemption, I venture to think, does not apply. 
It is true that in reply to Mr. Prain's private and confi- 
dential inquiry I privately reminded him that Admiral 
Hotham had given a general opinion against the transport 


of soldiers mid stoics by British ships; hut I did this to 
help Mr. Prain in his efforts to induce tin 1 authorities to 
send their soldiers on hoard his ship as private passengers, 
so as not to compromise his position with the Opposition, 
for whom he has strong sympathies, and in the success of 
whose cause he is an enthusiastic believer. But. as your 
lordship will perceive. [ decline to commit myself officially 
to the opinion that the Pacific Steam Navigation Company 
would, under present circumstances, commit a breach of 
neutrality in transporting troops for the Chilean Govern- 
ment." ' 

The purport of Mr. Kennedy's suggestion appears to 
be that, if the persons in question were transported as 
"troops for the Chilean' Government," the act might be 
considered culpable; hut that if the same persons, who 
were in fact soldiers in the service of that Government, 
were taken on hoard as "private passengers," the ship 
would not he ••compromised" by their transportation. 
Perhaps a touch of irony may he detected in Mr. Ken- 
nedy's suggestion, since it was not entirely harmonious 
with the private 1 advice which he gave on the strength of 
Admiral Hotham's opinion. 

In the neutrality proclamation issued by the British 
Government April 23, L898, in respect of the war between 
the United States and Spain, the acts against which Brit- 
ish subjects were warned as being in derogation of their 
duty as neutrals, or in contravention of the law of nations, 
comprised the "carrying" of " officers, soldiers, dispatches, 
arms, ammunition, military stores or materials, or any 
article or articles considered and deemed to he contraband 
of war according to the law or modern usages of nations, 
for tin 1 use 1 or service of either of the said powers." 8 

In the late controversy between Germany and Great 
Britain growing out of the seizure and detention by Brit- 
ish cruisers of the German East African mail steamers 
Bimdesrath, Gent nil. and Herzog it appears that one of the 
grounds on which the steamer first mentioned was seized 
was that she carried "twenty Dutch and Germans and 
two supposed Boers, three Germans and two Austrians 

'Chile No. 1 ( L892), 2:;t>-24L\ 

- Proclamations and Decrees during the War with Spain. 35. 


believed to be officers, all believed to be intending com- 
batants, although shown as civilians." In reply to the 
request of the German Government for the vessel's re- 
lease Lord Salisbury stated, among other things, that she 
' ; had on board a number of passengers believed to be vol- 
unteers for service with the Boers." It was subsequently 
stated that the search of the ship was expected to disclose 
"arms among baggage of Germans on board, who state 
openly they are going to the Transvaal." The German 
Government declared that it had no knowledge of more 
than two of its officers having proceeded to the Transvaal, 
where they were unable to obtain commands. The British 
Government subsequently directed that every facility for 
proceeding to his destination should be afforded "to any 
passenger whom the court considers innocent." The 
steamer and her cargo were afterwards discharged. In 
the case of the Herzog it was alleged, among other things, 
that she had on board "a considerable number of male 
passengers, many in khaki, apparently soldiers." It 
turned out that she had among her passengers three Red 
Cross expeditions. The General was said to have on 
board a considerable number of Dutch and German pas- 
sengers for the Transvaal in plain clothes, but "of mili- 
tary appearance," some of w r hom were believed to be 
trained artillerymen. Lord Salisbury afterwards stated 
that "there was no sufficient evidence as to their destina- 
tion to justify further action on the part of the officers 
conducting the search." 

In none of these cases was it alleged that the suspected 
persons were soldiers in the actual service of the enemy. 
They seem rather to have been looked upon as contra- 
band, as material immediately useful in war. In this 
relation it is to be observed that Count von Billow, in a 
speech in the Reichstag, January 19, 1901, laid down cer- 
tain propositions of international law, one of which was 
that by the term contraband of war, "only such articles 
or persons are to be understood as are suited for war, and 
at the same time are destined for one of the belligerents." 
By this definition Count von Billow seems to have concur- 
red in the opinion apparently entertained by Lord Salis- 
buiy, that the transportation of persons suited for war 

6482—01 7 


and destined for a belligerent may be dealt with as a case 
of contraband, without regard to the question whether 

Mich persons arc in the actual service of the enemy. 

This opinion accords with that of Bluntschli, who says: 

"§ 815. The transportation of troops or of general 
officer^ forming part of belligerent armies, on neutral 
ships, is assimilated to the transportation of materials of 
Avar and is regarded as contraband. The troops or officers 
may be made prisoners." 

By troops he means not only a large force, but a small 
number of soldiers with an underofficer. for example: 
and he considers the same principle applicable to a mili- 
tary general officer without his command. 1 

Perels considers as prohibited the transportation of sub- 
jects of a belligerent power who arc in the actual military 
service or who are Liable to such service. (Das Interna- 
tionale offentliche Seereeht, Berlin. 1882.) 

Marquardsen thinks it an essential condition of seizure 
that the persons are in the actual military service of the 
enemy: and he holds that If Mason and Slidell had been 
military persons the question of the legality of their cap- 
ture would have been one for the determination of the 
prize courts, although the Trent was not under contract 
with any government.' 2 

Rivier, in his late work, says: 

'"Another application of the principles laid down con- 
cerns the transportation at sea. by neutral ships, of soldiers 
and sailors destined to a belligerent. According to a just 
opinion this transportation is forbidden to the neutral 
state, but not to its private citizens. The latter undertake 
it at their peril and risk. If. as we assume, the owner or 
the master of the ship is cognizant of the nature of the 
transportation, and that it is of sufficient importance, 
which is a question of fact, the injured belligerent may 
seize and confiscate the ship. 3 

See also Fiore, Droit International Public. Ill, 514, 
s" 1602; Field, International Code, S 853: Creasy. First 
Platform of International Law. %% 595, 596. 

l Le Droit Int. Codifie, Lardy 's ed., Paris. 1881. 
1 Der Trent-Fall, 1862, chap. 10. 
■Principes du Droit des: Gens, II, 388. 


The ques f ion of the transportation of military persons 
has been discussed and has formed the subject of resolu- 
tions by the Institute of International Law, not as a 
question of contraband, but as a question of prohibited 
transportation. In accordance with this view, the Insti- 
tute, at its session in Venice in 1896, adopted the follow- 
ing resolutions: 

" §6. It is forbidden to attack or oppose the transporta- 
tion of diplomats or diplomatic couriers: 1st, neutrals; 
2nd, those accredited to neutrals; 3rd, navigating under 
the neutral flag between neutral ports, or between a neu- 
tral port and the port of a belligerent. 

"On the contrary, the transportation of the diplomats 
of an enemy accredited to his ally is, except it be in the 
course of regular and ordinary traffic, prohibited: 1st, on 
the territories and waters of the belligerents; 2nd, between 
their possessions; 3rd, between the allied belligerents. 

" §7. The transportation of troops, military men, or mili- 
tary agents of an enemy is forbidden: 1st, in the waters 
of the belligerents; 2nd, between their authorities, ports, 
possessions, armies, or fleets; 3rd — when the transporta- 
tion is made on account of or by the order or mandate of 
the enemy, or to conduct to him (pour lui amener) either 
his agents with a commission for the operations of the 
war, or military persons already in his service, or auxil- 
iaries or troops enrolled in violation of neutrality — between 
neutral ports, between those of a neutral and those of a 
belligerent, from a neutral point to the army or the fleet 
of a belligerent. 

"The prohibition does not extend to the transportation 
of individuals who are not yet in the military service of 
a belligerent, even though their intention is to enter it, or 
who make the voyage as simple passengers without mani- 
fest connection with the military service. 

" § 8. The transportation of despatches (official commu- 
nications between official authorities), between two author- 
ities of an enemy, who are on land or ships belonging to 
or occupied by him, is prohibited, save in regular or ordi- 
nary traffic. 



The prohibition does not extend to transportation 
either between neutral ports or from or to some neutral 
territory or authority." * 

In connection with the resolutions of the Institute, ref- 
erence should be made to the work of M. Kleen, entitled 
"De la Contrebande de Guerre et des Transports Interdits 
aux Neutres," Paris, 1893, which he prepared especially 
for the elucidation of the questions before the Institute. 

While the controversy between Germany and Great 
Britain, as to the seizure of the German mail steamers, 
was in its early stages, Prof. T. E. Holland, editor of the 
British "Admiralty Manual of the Law of Prize," in a 
letter dated Jan. 2, 1900, and published in the London 
Times of the next day, said: 

"The carriage by a neutral ship of eneiny troops, or of 
even a few military officers, as also of enemy dispatches, 
is an 'enemy service' of so important a kind as to involve 
the confiscation of the vessel concerned, a penalty which, 
under ordinary circumstances, is not imposed upon car- 
riage of 'contraband' properly so called. See Lord 
Stowell's luminous judgments in Orozemho (6 Rob., 430) 
and Atalanta (id., 440). The alleged offense of the ship 
Bundesrath would seem to be of this description." 

When this letter was written, the facts in the case of the 
Bundesrath had not been definitely ascertained; but, with- 
out regard to any particular case, it is obvious from the 
passage quoted that, where the transportation of military 
persons is in question, Professor Holland considers the car- 
riage of the persons, and not the special letting out of the 
ship to a belligerent government for that purpose, as the 
gravamen of the charge of "enemy service," and that he 
interprets the decisions of Sir William Scott as authority 
for this view. 

1 Annuaire, XV, 231-232. 



A United States naval force falls in with and subdues a 
naval force of the enemy engaged in convoying a fleet of 
merchant vessels. Among the latter is found a neutral 
vessel, bound to an unblockaded port, with a cargo con- 
taining nothing of a contraband character. 

Should the vessel be released, or be brought before a 
prize court? 


The question whether the acceptance by a neutral vessel 
of the convoy of a belligerent man-of-war is an illegal act, 
which in itself affords good ground for condemnation if 
such vessel be captured by the other belligerent, is one 
which has been much discussed and which has given rise 
to not a little divergence of opinion. The affirmative of 
the question is maintained b}^ the English courts and 
English writers, and also by leading publicists of the 
United States, among whom may be mentioned Kent, 
Duer, Woolsey, and Dana. 1 

On the other hand, the Government of the United States 
on one occasion took the opposite ground, maintaining, in 
a controversy with Denmark which arose in 1810, that so 
long as the association of the neutral vessel with the bellig- 
erent convoy was not attended with any attempt at con- 
cealment or deceit, nor with any participation in the actual 
resistance of the convoying force, she did not lose her 
neutral character. In this controvers} 7 the United States 
was ultimately represented by Mr. Wheaton, who thus 
became committed to that view. But, while it was con- 
tended by Mr. Wheaton that the mere association, though 
voluntary, of the neutral vessel with the belligerent con- 
voy did not justify condemnation, } r et it was not denied 
by him that such association afforded ground for bringing 
in the vessel for adjudication, although he intimated in the 
course of his argument that in at least some of the cases 
before him there was no other association than that which 

1 Dana'y Wheaton, 708, note 245. 


resulted from an accidental and temporary coincidence of 

Mr. William Beach Lawrence, referring to the negotia- 
tion with Denmark, says: "That the success of the neeo- 

7 » ^ 

tiation was. in a (jreat degree, to he attributed to the 
personal character and special qualities of Mr. Wheaton 

can not be doubted by anyone who reads the passages 
which we have cited from eminent publicists." 1 In the 
passages thus referred to the view opposite to that ex- 
pounded by Mr. Wheaton is maintained, and it appears to 
be supported by the preponderance of recent opinion. 
Snow, referring to the question " whether neutral vessels 
who place themselves under the convoy of a belligerent 
cruiser are Liable to capture and confiscation," states that 
"the weight of opinion favors the doctrine that such acts 
are sufficient to condemn the vessel." 2 Says Rivier: "A 
neutral merchant vessel which sails under enemy convoy 
violates neutrality; its seizure and confiscation would be 
legitimate." 3 

Upon full consideration of the subject in all its aspects, 
including' the discussions between the United States and 
Denmark, it seems to be unquestionable that the vessel 
should not be released, but should be sent in for adjudi- 


The controversy between the United States and Den- 
mark, mentioned in the foregoing solution, grew out of 
the enforcement of certain revised instructions which were 
issued to the Danish men-of-war and privateers. March 28, 
1810. By one clause of these instructions all vessels were 
declared to be good prize which had " made use of British 
convoy either in the Atlantic or the Baltic." 4 Under this 
clause 18 American vessels were seized in 1810, out of a 
total of 1'2'2 captures of American vessels by Danish 
cruisers in that year. 

The convoy cases were first discussed, on the part of the 
United States, by Mr. George W. Erving, who was sent 
as special minister to Copenhagen in 181 L In the course 
of a comprehensive general report of June 23, 1811, on 

1 Wheaton , 8 Elements, Lawrence's ed. of L863, \>. 871. 

'Stockton's Snow, 163. 

8 Principesdu Droit des 'Gens, 11,424: Pari-. L896. 

4 Am. State Papers, For. Rel., III. 329, S24. 


the Danish captures, he thus referred to the convoy cases: 
"The ground on which they stand, I am aware, is not 
perfectly solid, yet I did not feel myself authorized to 
abandon them, and therefore have taken up an argument 
which may be difficult, hut which I shall go as far as pos- 
sible in maintaining." 1 The Danish Government, how- 
ever, contended " that neutral vessels that make use of the 
convoy or protection of the vessels of war of Great Brit- 
ain are to be considered as good prize if the Danish 
privateers capture them under convoy." Such was the 
construction given by Denmark to the convoy clause, 
which, as thus interpreted, that Government refused to 
modify. The principle on which the clause was justified 
was, as stated by Mr. de Rosenkrantz, Danish minister of 
foreign affairs, "that he who causes himself to be pro- 
tected, by that act ranges himself on the side of the pro- 
tector, and thus puts himself in opposition to the enem\' 
of the protector, and evidently renounces the advantages 
attached to the character of friend to him against whom 
he seeks the protection. If Denmark should abandon this 
principle the navigators of all nations would find their 
account in carrying on the commerce of Great Britain 
under the protection of British ships of war, without run- 
ning any risk. We every day see this done, the Danish 
Government not being able to place in the way of it any 
obstacles." 2 

After Ma} T , 1811, few American vessels were molested 
by the Danes, and between May, 1812, when Mr. Christo- 
pher Hughes' special mission ended, and 1827, when Mr. 
Wheaton was sent as minister to Denmark, little serious 
effort was made to effect a settlement of any of the claims 
against that Government. 

Mr. Wheaton's principal argument in relation to the 
convov cases was embraced in a note of Nov. 24, 1829. 3 
He assumed the following grounds: 

1. That under the convo} r clause vessels and cargoes 
were condemned by the high court of admiralty, although 
in most, if not in all, such cases there was satisfactory 
proof that the vessels had been compelled to join the Brit- 
ish convoy, and although the Danish prize ordinance was 

1 Am. State Papers, For. Rel., Ill, 521. 
2 Am. State Papers, For. Rel., Ill, 526. 
3 H. Doc. 249, 22 Cong., 1 sess., 34-38. 


not known at St. Petersburg when they sailed from that 
port. Whoever considered the geographical position of 

the Baltic Sea. its outlets into the ocean, and the winds 
and currents by which its navigation was affected would, 
said Mr. Wheaton, readily perceive how difficult it must 
have been for neutrals passing during the war through 
the narrow and sinuous channels to avoid becoming entan- 
gled in the numerous convoys of the enemy of Denmark. 
even supposing that there was no disposition on the one 
side to receive or on the other to impart protection against 
the multiplied perils of those times. To make the protec- 
tion accidentally received by or forcibly obtruded upon 
the neutral under these circumstances a ground of confis- 
cation was an injustice strikingly apparent. 

( bmment. — This ground, it may be observed, was in the 
nature of a confession and avoidance, since, while admit- 
ting the presence of the vessels with the convoy, it sug- 
gested as excuses want of notice and coercion. 

'2. But it was. said Mr. Wheaton, less material to dwell 
on this aspect of the case, since the United States wholly 
denied the principle on which the clause in question was 
founded. This clause, as construed by the Danish tri- 
bunals, involved, so Mr. Wheaton declared, ''the applica- 
tion of a principle (to say the least) of doubtful authority, 
to the confiscation of neutral property for a supposed 
offence committed, not by the owner, but by his agent, 
without the knowledge or orders of the owners, under a 
belligerent edict, retrospective in its operation, because 
unknown to those whom it was to affect." As interpreted 
by the Danish tribunals, it made "the fact of having nav- 
igated under the enemy's convoy * * * per ses, justi- 
fiable cause (not of capture merely, but) of condemnation 
in the tribunals of the opposite belligerent, and that with- 
out inquiring into the proofs of proprietary interest or the 
circumstances and motives under which the captured vessel 
had joined the convoy, or into the legality of the voyage, 
or the innocence of her conduct in other respects." A 
belligerent pretension so harsh, apparently 80 new. and so 
important in its consequences, said Mr. Wheaton. must, 
before neutral nations could consent to it. be rigorously 
demonstrated on the authority of writers and the usage of 
nations; yet no expounder of the law of nations even men- 

mr. wheaton's argument. 103 

tioned it, and still less could it be asserted that any neutral 
nation had ever acquiesced in it. Even the records of the 
British courts might be searched in vain for any support 
of the pretension that the fact of having sailed under bel- 
ligerent convoy was in all cases and under all circumstances 
conclusive cause of condemnation. Being found in com- 
pany with an enemy's convoy might, indeed, furnish a pre- 
sumption that the captured vessel 'and cargo belonged to 
the enemy, but it was a slight presumption only, which 
would readily yield to countervailing proof, and for this 
purpose the vessel should have been permitted to show, 
for example, that she had been compelled to join the con- 
voy, or that she had joined it to protect herself not from 
examination by Danish cruisers but against others whose 
notorious conduct and avowed principles rendered it cer- 
tain that captures by them would be followed by con- 

Comment. — From this argument it is to be inferred that 
the Danish tribunals gave to the clause in question a more 
extensive effect than that ascribed to it by the Danish Gov- 
ernment. The construction of that Government, expressed 
in the correspondence with Mr. Erving, was, as has been 
seen, that vessels seized on the ground of accepting British 
protection were " good prize if the Danish privateers cap- 
ture them under convoy;" while, as stated by Mr. Whea- 
ton, " the fact of having navigated under the enemy's con- 
voy " was held by the tribunals to be in itself a cause of 

3. Mr. Wheaton also contended that as Denmark had, 
when neutral, asserted the right to protect her commerce 
against belligerent visitation and search b}^ means of armed 
convoys of her own public ships, she was a fortiori pre- 
cluded from asserting a right to condemn neutral vessels 
for sailing under belligerent convoy. Great Britain treated 
navigating under the Convoy of a neutral ship as a ground 
of condemnation, because it tended to defeat the lawful 
right of belligerent search and render every attempt to 
exercise it a contest of violence. But the belligerent, con- 
tinued Mr. Wheaton, had a right to resist; and the mas- 
ters of vessels under his convoy, not participating in his 
resistance, could no more be involved in the legal conse- 
quences of resistance than could the neutral shipper of 


goods on a belligerent vessel or the neutral owner of goods 
found in a belligerent fortress. If the vessels in question 
had been armed, and had thus contributed to augment the 
force of the belligerent convoy, or if they had actually 
participated in battle with the Danish cruisers, they would 
justly have fallen by the fate of war. They were, how- 
ever, unarmed merchantmen, whose junction with the con- 
voying squadron, by expanding the sphere of its protection, 
tended to weaken it; and instead of participating in the 
enemy's resistance, there was in fact no battle and no 
resistance, and they fell a defenceless prey to the force of 
the assailants. 

Comment. — This branch of Mr. Wheaton's argument 
embraces the questions of (1) neutral convoy and (2) neu- 
tral goods shipped on an armed enemy vessel. As to the 
first question, it may be observed that the conception of 
neutral convoy by nations which recognize and practise it 
is not that of resistance to search, but of the substitution 
for the process of search of a responsible governmental 
guarantee. This idea is conveyed in Stockton's Naval War 

"Art. 30. * * * Convoys of neutral merchant ves- 
sels, under escort of vessels of war of their own state, are 
exempt from the right of search, upon proper assurances, 
based on thorough examination, from the commander of 
the convoy." 

As to the second question, Mr. Wheaton's contention 
was drawn from the case of the Nereide? in which the 
goods were held to be exempt, Mr. Justice Story and one 
other justice dissenting, while two others were absent. 2 
From this decision Mr. Wheaton reasons by analogy, and 
to a great extent draws his language on this point. It is, 
however, to be noticed that in a subsequent case 1 the Su- 
preme Court sharply distinguished the case of lading goods 
on an armed enemy vessel from that of tin 4 acceptance of 
belligerent convoy/ 5 Mr. Wheaton himself , in his treatise 
on international law, thus summarizes the court's reason- 
ing on the subject of belligerent convoy: "A convoy was 
an association for a hostile object. In undertaking it a 
State spreads over the merchant vessels an immunity from 
search which belongs only to a national ship; and by joining 

1 9 Cranch, 388. ' The Atalanta, 3 Wheaton, 409. 

2 Dana's Wheaton, 698, note 243. 

MR. wheaton's argument. 105 

a convoy, every individual vessel puts off her pacific char- 
acter, and undertakes for the discharge of duties which 
belong only to the military marine. If, then, the associ- 
ation be voluntary, the neutral, in suffering the fate of the 
entire convoy, has only to regret his own folly in wedding 
his fortune to theirs; or if involved in the resistance of the 
convoying ship, he shares the fate to which the leader of 
his own choice is liable in case of capture." 1 

•±. Mr. Wheaton further contended that, in view of the 
multiplied ravages to which American commerce was then 
exposed on every sea, from the sweeping decrees of con- 
fiscation fulminated by the great belligerent powers, the 
conduct of the vessels in question might be sufficiently 
accounted for without resorting to the supposition that 
they meant to resist, or even to evade, the exercise of the 
belligerent rights of Denmark. Even admitting that the 
neutral American had no right to put himself under con- 
voy in order to avoid the exercise of the right of visitation 
and search by a friend* as Denmark professed to be, he 
had still a perfect right, said Mr. Wheaton, to defend him- 
self against his enemy, as France had shown herself to be, 
b} r her conduct, and the avowed principles upon which she 
had declared open war against all neutral trade. Denmark 
had a right to capture the commerce of her enemy, and 
for that purpose to search and examine vessels under the 
neutral flag, whilst America had an equal right to protect 
her commerce against French capture by all the means 
allowed b} r the ordinary laws of war between enemies. 
The exercise of this right was wholly unaffected by the 
circumstance of the war existing between Denmark and 
England, or by the alliance between Denmark and France. 
America and England were at peace. The alliance between 
Denmark and France was against England, not against 
America; and the Danish Government, which refused to 
adopt the decrees of Berlin and Milan as the rule of its 
conduct towards neutrals, surely could not consider it 
culpable, on the part of American shipmasters, to have 
defended themselves against the operation of those decrees 
by every means in their power. If the use of any of these 
means conflicted in any degree with the belligerent rights 
of Denmark, that was an incidental consequence, which 

1 Dana's Wheaton, 69.8. 


could not be avoided by the parties without sacrificing 
their rights of self-defence. 

Comment. — With regard to this particular contention, 
it may be suggested that, while it assumes that the British 
convoy was accepted for protection against French and not 
against Danish cruisers, and therefore (contrary to conten- 
tion 1) deliberately, it also assumes that a neutral vessel 
may. at the expense of the rights of one belligerent, seek 
from another that protection which its own Government 
may fail to give against the exorbitant pretensions of a 
third belligerent. In order to support this contention, it 
should seem that the facts would in any event have to be 
clearly established. 

5. But. finally, even supposing that it was the intention 
of the American shipmaster, in sailing with the British 
convoy, to escape from Danish as well as French cruisers, 
that intention had. Mr. Wheaton further contended, failed 
of its effect: and it might be asked what belligerent right 
of Denmark had been practically injured by such an abor- 
tive attempt? **If any," said Mr. Wheaton, "it must be 
the right of visitation and search. But the right of visita- 
tion and search is not a substantive and independent right, 
with which belligerents are invested by the law of nations 
for the purpose of wantonly vexing and interrupting the 
commerce of neutrals. It is a right growing out of the 
greater right of capturing enemy's property or contraband 
of war. and to be used as a means to an end to enforce the 
exercise of that right. Here the exercise of the right was 
never, in fact, opposed, and no injury has accrued to the 
belligerent. But it may be said that it might have been 
opposed, and entirely defeated, had it not been for the 
accidental circumstance of the separation of these vessels 
from the convoying force, and that the entire commerce of 
the world with the Baltic Sea might thus have been effectu- 
ally protected from Danish capture. And it might be 
asked in reply, what injury would have resulted to the 
belligerent rights of Denmark from this circumstance \ If 
the property be neutral, and tin 1 voyage lawful (as they were 
in the present instance), what injury would result from the 
vessels escaping from examination? On the other hand, 
if the property was that of the enemy, its escape must be 
attributed to the superior force of the enemy. which, though 

MR. wheaton's argument. 107 

a loss, would not be an injury of which Denmark would 
have a legal right to complain." 

Comment. — With regard to this special phase of the 
case it may be observed that the contention that whether 
or no the vessel was enemy's property or otherwise sub- 
ject to capture, no injury was done to the belligerent 
whose exercise of the right of search was prevented, may 
be accepted merely as a reassertion of one view of the 
controversy, since it obviously assumes the point at issue, 
viz, whether such prevention was an injury of which the 
belligerent had a right to complain, or in other words, a 
substantial injury. 

Considering Mr. Wheaton's argument as a whole, it 
appears (1) that it was directed against the condemnation 
and not against the capture of the vessels; (2) that it was 
chiefly designed to show that the condemnations were, 
under the special circumstances of the case, improper; (3) 
that it alleged that the condemnations proceeded upon a 
construction of the instructions of 1810 which was, as has 
been pointed out, more extensive in its effect than that 
which was originally given to them by the Danish Gov- 
ernment; (•!) that it nowhere suggests that the acceptance 
of belligerent convoy did not create an adverse presump- 
tion which justified the sending in of the vessels for 

On March 28, 1830, a convention was signed by which 
the King of Denmark, while renouncing all claims against 
the United States, agreed to pay a lump sum of 650,000 
Spanish milled dollars "on account of the citizens of the 
United States, who have preferred claims relating to the 
seizure, detention, condemnation, or confiscation of their 
vessels, cargoes, or property whatsoever, by the public or 
private armed ships, or by the tribunals of Denmark, or 
in the States subject to the Danish sceptre," during the 
maritime war in question. And it was further stipulated 
that u the intention of the two high contracting parties 
being solely to terminate, definitely and irrevocably, all 
the claims which have hitherto been preferred, they 
expressly declare that the present convention is only appli- 
cable to the cases therein mentioned, and, having no other 
object, can never hereafter -be invoked by one party or 
the other as a precedent or rule for the future." 


Hostilities have broken out in a certain country between 
the titular government and its opponents. These hostil- 
ities are carried on only to a slight extent on land, where 
the government for the most part successfully maintains 
its authority. The opponents of the government have not 
been recognized by foreign governments as belligerents. 
Their force is derived chiefly from the national navy, 
which, with the exception of two or three vessels, took 
an original part in the insurrection. The ships in 
revolt, without attempting to maintain a blockade, en- 
deavor to control and interrupt the commerce of one of 
the principal ports of the country. On one occasion they 
arrest, within the limits of the port and in territorial waters, 
a neutral ship laden with arms and munitions of war and on 
its way to a wharf to deliver its cargo to agents of the titular 
government. The master appeals to the commander of a 
naval force of his own country for protection. Naval ves- 
sels of several foreign countries are then lying in the 
harbor, and there has been a general cooperation among 
them for the protection of commerce from unlawful inter- 
ference. The foreign governments, however, all profess 
an attitude of nonintervention in the conflict. 

What action should be taken on the appeal of the master ? 


On the situation above stated the reports of the various 
committees exhibited a divergence of views. This diver- 
gence may be explained as follow-: 

On the one hand, the view was taken that, as the trade 
in arms and munitions of war is not prohibited by the 
neutralitv laws, and as the insurgents had not been recog- 
nized as belligerents, foreign governments might, in their 
discretion, according to the measure of privilege which 
they should accord to the insurgents, protect or decline to 
protect their citizens in furnishing arms and munitions of 
war to the titular government, even in the territorial 
waters of the country where the insurrection prevails. 



In support of this view the following well-known pas- 
sage, in an instruction of Mr. Fish, as Secretary of State, 
in relation to certain vessels in the service of insurgents 
against the Government of Haiti, was cited: 

* ; Regarding them simply as armed cruisers of insurgents 
not yet acknowledged by this Government to have attained 
belligerent rights, it is competent to the United States to 
deny and resist the exercise by those vessels or any other 
agents of the rebellion of the privileges which attend 
maritime war, in respect to our citizens or property enti- 
tled to our protection. AVe may or may not, at our 
option, as justice or policy may require, treat them as 
pirates in the absolute and unqualified sense, or we may, 
as the circumstances of any actual case shall suggest, 
waive the extreme right and recognize, where facts war- 
rant it, an actual intent on the part of the individual 
offenders, not to depredate in a criminal sense and for pri- 
vate gain, but to capture jure belli. It is sufficient for the 
present purpose that the United States will not admit any 
commission or authority proceeding from rebels as a justi- 
fication or excuse for injury to persons or propert} 7 enti- 
tled to the protection of this Government. They will not 
tolerate the search or stopping by cruisers in the rebel 
service of vessels of the United States, nor any other act 
which is only privileged by recognized belligerency." 1 

On the other hand, the view was maintained that the 
solution in the present case does not depend upon the rec- 
ognition or nonrecognition of belligerency, nor upon the 
extent of the obligations which neutral governments are 
obliged to perform; that Mr. Fish, in denying to the 
insurgents '" the privileges which attend maritime war," 
evidently referred to the exercise of the rights of war on 
the high seas, and not to the conduct of hostilities within 
the jurisdiction of Haiti; that the acts, the commission of 
which within their jurisdiction neutral governments are 
obliged to prevent, by no means comprise all acts of an 
unneutral character, against which the parties to an armed 
conflict are permitted to exercise, within proper limits, 
measures of prevention: and that, as the supply of arms 
and munitions of war is a direct military aid, foreign gov- 
ernments, though they abstain from recognizing the insur- 
gents as belligerents and from thus acknowleding their 

1 Wharton's Int. Law Digest, III, 466. 


right to interrupt even unneutral commerce on the high 
seas, are not, so long as they profess an attitude of non- 
intervention, justified in interfering at the domestic scene 
of hostilities to protect their citizens in furnishing such 
materials to either party. 

It may be observed that the instructions issued by the 
United States in the case of the insurrection in Brazil, in 
1893-1894, although they explicitly concede the right of 
the insurgent fleet to carry on hostilities within Brazilian 
jurisdiction, do not expressly cover the present situation; 
nor does it appear to have been involved in any protective 
action taken by the naval representatives, of the United 
States on that occasion. The question was. however, sug- 
gested in correspondence, and as the record leaves it in an 
unsatisfactory position, it appears to be a proper subject 
for official elucidation. 


Revolution m Chile, 1891. — This situation is suggested 
by events which took place in Chile during the revolution 
of 1891, and by certain occurrences in the harbor of Rio 
de Janeiro during the revolt of the Brazilian squadron in 
1893-1891-. It involves the question of the rights of insur- 
gents, who have not been recognized as belligerents, when 
such insurgents are carrying on hostilities within the 
jurisdiction of the disturbed state. The question of hos- 
tilities on the high seas, discussed in the case of the 
Ambrose Light, 1 is not embraced in it, though it may 
now and then incidentally appear in the narrative. 

The revolution in Chile grew out of a controversy 
between President Balmaceda and the Congress as to the 
power of the former to maintain in office a cabinet upon 
which Congressional censure had been pronounced. Under 
the Chilean constitution of 1833 the President possessed 
the power to appoint and remove public officials; but it 
had been the practice for the ministry, on a vote of cen- 
sure by Congress, to resign. This custom President Bal- 
maceda essayed to break. On the night of January 6, 
1891, a number of the leaders of the opposition, including 
the vice-president of the Senate and the president of the 
Chamber of Deputies, went on board the national fleet 
lying at Valparaiso, and in the name of the Congress pro- 

1 25 Fed. Rep., 408. 


claimed a revolution. The ships taking part in the move- 
ment were the Blanco Encalada, Almirante Cochrane, 
Esmeralda, Ilaascar, CPIIiggins, and Magellanes, the 
command of which when they revolted was assumed by 
Capt. Jorge Montt, of the Chilean nav} T . 1 

The principal incident in which the United States was 
concerned during the continuance of hostilities, was the 
recovery of the Itata, the insurgent transport, which 
escaped from the custody of United States officials at San 
Diego, California, while under arrest on a charge of 
violating the neutrality laws. This incident, however, 
does not fall within the purview of the present discussion. 

Report of Admiral McCann. — In a report to the Secre- 
tary of the Navy, February 9, 1891, Rear- Admiral McCann, 
U. S. flagship Pensacola, stated that the insurgents had 
seized Chilean coast steamers for use as transports, 'but 
had not interfered with foreign steamers; that merchant 
vessels were asked for supplies, which were refused in 
order not to incur trouble with the shore authorities; that 
the insurgent ships were stationed off the port for observa- 
tion rather than blockade, vessels being allowed to pass in 
and out freely; but that in some instances lighters loaded 
with supplies had been taken from alongside merchant 
steamers. 2 

Instructions to Admiral Broion. — March 26, 1891, Mr. 
Tracy, Secretary of the Navy, gave to Rear-Admiral 
Brown, who had been sent out to relieve Admiral McCann, 
the following instructions: 3 

"(1) To abstain from any proceedings which shall be in 
the nature of assistance to either party in the present dis- 
turbance, or from which sympath} T with either part} T could 
be inferred. 

" (2) In reference to the ships which have been declared 
outlawed by the Chilean Government, if such ships attempt 
to commit injuries or depredations upon the persons or 
property of Americans, you are authorized and directed 
to interfere in whatever wav mav be deemed necessary to 
prevent such acts; but you are not to interfere except for 
the protection of the lives or property of American citizens. 

*H. Ex. Doc. 91, 52 Cong., 1 sess., 2-3. 
2 H. Ex. Doc. 91, 52 Cong., 1 sess.| 235. 
3 H. Ex. Doc. 91, 52 Cong., 1 sess., 245-246. 

6482—01 8 


•• (3) Vessels or other property belonging to our citizens 
which may have been seized by the insurgents upon the 
high seas and for which no just settlement or compensa- 
tion has been made are liable to forcible recoveiw; but the 
facts should be ascertained before proceeding to extreme 
measures and all effort made to avoid such measures. 

"(4) Should the bombardment of any place, by which 
the lives or property of Americans may be endangered. 
be attempted or threatened by such ships, you will, if and 
when your force is sufficient for the purpose, require them 
to refrain from bombarding the place until sufficient time 
has been allowed for placing American life and property 
in safety. 

"You will enforce this demand if it is refused, and if it 
is granted, proceed to give effect to the measures neces- 
sary for the security of such life or property. 

*' »Jth. Referring to paragraph 18, page 137. of the Navy 
Regulations of 1876. which is as follows: 

" 4 if any vessel shall be taken acting as a vessel of war 
or a privateer without having proper commission so to 
act, the officers and crew shall be considered as pirates, 
and treated accordingly.' 

"You are informed that this paragraph does not refer 
to vessels acting in the interests of insurgents and direct- 
ing their hostilities solely against the state whose authority 
they have disputed. It is only when such vessels commit 
piratical acts that they are to be treated as pirates, and 
unless their acts are of such a character or are directed 
against the persons or property of Americans }Ou are not 
authorized to interfere with them. 

"7th. In all cases where it becomes necessary to take 
forcible measures, force will only be used as a last resort, 
and then only to the extent which is necessary to effect 
the object in view." 

British Correspondence.— A fuller report of the acts of 
the insurgent fleet may be found in the correspondence of 
the British Government, under whose supervision the 
commercial and shipping interests of the country, being 
largely in English hands, immediately fell. Questions 
were raised (1) as to blockade, (2) as to seizures of coal 
and other cargoes, and (3) as to the payment of duties. 


Questions of blockade. — When the revolution was an- 
nounced, the British naval forces in Chile were instructed 
by the Admiralty to "take no part except protection of 
British interests." 1 Early in the conflict, the Congres- 
sional deputation on the insurgent fleet notified the Gov- 
ernment authorities and the foreign representatives that 
Iquique and Valparaiso would be blockaded on February 
1, 1891. The Government declared that the blockade 
would be illegal, and urged the diplomatic corps to protest 
against it. At the request of the minister for foreign 
affairs, the diplomatic representatives of France, German}", 
Great Britain, and the United States met at the foreign 
office to discuss the subject. On consulting they agreed 
that the blockade would be illegal, but that they could not 
directly protest against it, as this would involve a recog- 
nition of the insurgent fleet, which the Government had 
declared to be piratical. As a compromise they instructed 
the consuls to protest at their respective ports. A protest 
was made by the consular body at Iquique, January 18, 
1891, to the captain of the Almirante Cochrane as follows: 
4 'The consular body being of opinion that the blockade 
notified to them will cause considerable damage to the per- 
sons and property of neutrals represented by them, pro- 
test against the act, and reserve the right to claim compen- 
sation for losses incurred." A similar protest was made 
by the consular corps at Valparaiso. 2 

At the same time Mr. Kennedy, then British minister at 
Santiago, telegraphed for instructions as to the course 
which should be pursued in the event of a blockade being 
established. The views of the foreign office on the sub- 
ject may be found in a telegram to a firm in Glasgow, Jan- 
uary 24, 1891, as follows: " Assuming effective blockade 
to exist, escort through it can not be given." :l 

In consequence of certain incidents the original notice 
was changed by the insurgents and it was announced that 
a blockade of Valparaiso would begin on the 18th of Jan- 
uary, and of Iquique on the 20th of the same month. In 
reality neither blockade was actually established. Captain 

1 Blue Book, Chile, No. 1 (1892), 2. 3 Blue Book, 8. 

2 Blue Book, 25-41. 


St. Clair, of II. B. M. S. Champion^ expressed the belief 
that the nonenforcement of the blockade at Valparaiso was 
the result of an interview which he held with Captain 
Montt, January 16, 1891, on board the Blanco Encalada 
at that port, and in which he pointed out "the illegality of 
any captures he might make." y 

It appears that when Captain St. Clair, on the 20th of 
January, delivered to the commander of the > H%ggvn& the 
protest of the consular corps against the proposed blockade 
of Valparaiso, he was assured that only vessels carrying' 
contraband of war would be interfered with.'~ 

Rear-Admiral Hotham arrived at Iquique in H. B. M. S. 
Wa/rspite, January 26. 1891. He found the AkrwranU 
Cochrcme "blockading" the port. She saluted his flag 
with 13 guns, "and," said Admiral Hotham, t; as it was a 
personal salute I returned it with the same number." The 
blockade was merely nominal. The Al/mi/rante Cochran, 
permitted free access to the shore by British vessels, and 
also allowed the mails, after examination, to be landed, 
and in some cases passengers from English steamers. 3 

Admiral Hotham arrived at Valparaiso January 31. 
There were then no Chilean men-of-war in the harbor, 
and vessels were going in and out and loading as usual. 
On the night of February 1 a man-of-war was seen in the 
"offing showing a searchlight." Next day the Esmeralda 
and two transports were observed some distance off the 
harbor and later were seen by a British man-of-war 25 
miles away standing to the northward. The British 
steamer Arica arrived February 2, and reported that she 
had been stopped oil' the port by an officer from the 
Esmeralda* who took out of her some dispatches for the 
Government authorities and searched the ship, but did not 
interfere with any other mails. 

Seizures of coal and other cargoes. — As to seizures of 
coal and other cargoes, it appears that early in January, 
1891, Captain St. Clair asked of the Congressional ists an 
a-surance that neutral property would not be interfered 
with in its transit from ship to shore or shore to ship. 
Captain Montt replied that until the blockade should be 

1 Blue Book, 41. 2 Blue Book, 47-50. 3 Blue Book, 45. 


established free transit would be allowed to all foreign 
merchandise not contraband of war. 1 

The British steamer Arica, on her arrival at Valparaiso 
on the 2d of Februaiy, reported that on January 21 she 
was boarded 6 miles from land by an officer from the 
insurgent transport Cachapol and was ordered not to go to 
certain ports to which she was bound, but to go to Pisagua. 
The master protested, but had to go. On his arrival there 
the captain of the insurgent ship Magellanes ordered him 
to deliver up his cargo of bullocks. He protested, but, 
on the advice of the British consul, delivered up the cattle 
and obtained a receipt for them. He was then ordered to 
go to Coquimbo to get more bullocks. He declined to 
comply with this demand and declared that he would, on 
his arrival at Coquimbo, place himself under the protection 
of H. B. M. S. Acorn. On hearing of the incident, Ad- 
miral Hotham dispatched Captain St. Clair in the Cham- 
pion with a letter to Captain Montt denouncing the act of 
the commander of the Magellanes as "a piece of presump- 
tion" inconsistent with assurances given to Captain St. 
Clair, and requesting Captain Montt to convey to his 
officers "the necessit}^ of the discontinuance of such 
proceedings." 2 

Early in February, 1891, the insurgent fleet sought to 
take coal from certain English and German ships and send 
it to Iquique. A guard from a British man-of-war was 
placed on board each of the British ships and a protest 
made to the commander of the Chilean squadron. The 
latter accepted the protest as to the British ships, but pro- 
ceeded to coal from the German collier J2ajah, which was 
towed out to sea. Admiral Hotham gave notice that he 
was charged with the protection of German, French, and 
Italian vessels as well as of British, and that he desired to 
impress upon the commander of the, squadron u the abso- 
lute necessit}^ of the ships of war under your orders re- 
fraining from an} T interference with the merchant vessels 
of the above-named nations trading with a friendly power. 
Cargoes of coal, provisions, etc. , bona fide consigned to 
noncombatants, can not be considered as contraband of 

1 Blue Book, 47-50. 2 Blue Book, 45-47. 


war; and any seizure or detention of vessels carrying such 
cargoes is a gross breach of their neutral rights." It 
appears that besides the Rajah, a British collier, the Kil- 
morci/. was seized by a Chilean transport under the orders 
of tin 1 Esmeralda. Admiral Hotham sent for the master 
of the KUmorey and an arrangement was made with the 
insurgent fleet to purchase the coal on terms with which 
the master expressed himself as satistied. Captain Montt 
offered in satisfaction of the seizure of the R<tj<ilt and KU- 
morey (1) a salute of 21 guns to the English and German 
flags, and (2) a promise of indemnity for any damages 
which either the ships or the consignees of the cargoes 
might have sustained in consequence of the seizure. This 
offer was accepted by Admiral Hotham and the incident 
treated as closed. The ships on arriving at Iquique were 
fully compensated. 1 

February IT, 1891, Mr. Kennedy wrote to Lord Salis- 
bury that the operations of the insurgent fleet up to that 
time had been limited to attempted landings on the coast, 
to the stoppage on the high seas of neutral ships chiefly 
for purposes of information, and to the seizure in various 
ports of launches laden with coal or provisions. For 
these articles payment had been made or promised and no 
serious complaint had reached him of violent acts com- 
mitted against British shipping. 2 

April 10, 1891, the foreign office sent to the Admiralty 
a draft of a telegram to Admiral Hotham, drawn up in 
consultation with the law offices of the Crown, saying: 

"Information has been received that the Congressional 
Party threaten that if steamers omit to call at the ports 
at which they usually touch such omission will be con- 
sidered a hostile act, and will render them liable to be 
seized. You should state to the heads of the party that 
their right to dictate to British vessels which ports they 
shall visit can not be admitted by Her Majesty's Govern- 
ment, and that you have received instructions to protect 
such vessels from molestation on this account if necessary. " 3 

Payment of duties. — Various questions arose as to the 
payment of duties, especially on the exportation of 

^lue Book, 13, 59-62, 73, 113. 3 Blue Book, 70. 

2 Blue Book, 51-52. 


nitrates, in consequence of the claim of the Government 
to exercise authority over ports and places of which the 
insurgents, in the progress of the revolution, obtained 
possession. The British foreign office at first declined 
to take the responsibility of advising merchants as to the 
course they should pursue, but suggested that if duties 
were exacted b}^ insurgent authorities in actual possession, 
payment should be made on compulsion and under pro- 
test, and better still, that a bond should be given for the 
amount if the insurgent authorities would accept it. On 
the other hand, it was declared that Her Majesty's Gov- 
ernment did not admit the right of the Chilean Govern- 
ment to require the payment over again of duties when 
there was evidence that they had already been paid on 
compulsion and under protest to the authorities in actual 
and complete possession of the port of export. Should the 
claim be persisted in, a bond might be given for the amount 
pending a settlement between the two Governments. 1 

In June, 1891, a gunboat belonging to the Balmaceda 
Government entered the port of Tocopilla, then in posses- 
sion of the insurgents, and exacted payment of duty on 
1,600 tons of nitrate loading for a British company on the 
British steamship Ohepica. The foreign office advised 
that if the Congressional authorities insisted on the pay- 
ment of any further and separate duties, as a condition of 
the vessel's leaving the port, the best course would be to 
give a bond for the amount of such duties under protest. 
At the same time Mr. Kennedy was instructed that in the 
opinion of Her Majesty's Government the action of the 
gunboat in exacting duties was "altogether wrongful and 
irregular, such dues being ordinarily and properly pay- 
able to the customs authorities at the port of clearance," 
and that the amount exacted would be claimed back from 
the Chilean Government. On arriving at the port Cap- 
tain Parr, of H. B. M. S. Melpomene, found that the pay- 
ment of the duties a second time was claimed by the 
revolutionary authorities, and that in default of their pay- 
ment the shipment of the cargo had been stopped. Cap- 
tain Parr remonstrated with the intendente and requested 
him to telegraph the provisional government at Iquique 

1 Blue -book, 69, 71, 75. 


for instructions, which he did. The provisional govern- 
ment replied that "solely out of deference to the comman- 
dante of the Melpomene, and as an act of respect to the 
British navy," they would accept payment of the duties in 
drafts on London, at ninety days' sight, thus giving the 
company four months and a half grace, as the term of the 
drafts would not begin to run till they were accepted. On 
receipt of this reply the manager of the nitrate firm agreed 
to sign the drafts as required. 1 
By this review it appears— 

1. That the British Government admitted the right of 
the insurgents to establish a blockade on the usual con- 
dition of effectiveness. 

2. That the British naval officers recognized the right 
of the insurgents to intercept contraband of war, and 
allowed them to a limited extent, but not as of right, to 
obtain coal and supplies for their fleet from neutral vessels. 

3. That the right to collect duties was acknowledged to 
belong to the insurgents wherever they maintained com- 
plete and effective possession of the place. 

Insurrection in Brazil, 1893-91+. — September 6, 1893, 
Mr. Thompson, the minister of the United States at Rio 
de Janeiro, reported that the navy of Brazil had revolted, 
assumed complete control over the harbor, and seized all 
the war vessels, and that it threatened, unless the vice- 
president resigned, to bombard the city. The revolted 
squadron, comprisingthe warships Aquidaban, Jupiter, and 
Rejrublica, together with a number of Brazilian merchant 
vessels which had been seized in the harbor, was under the 
command of Admiral Jose Custodio de Mello, of the Bra- 
zilian navy. The Government held possession of Fort 
Santa Cruz, which commands the entrance to the harbor, 
and retained the loyalty of the army. The squadron con- 
trolled the inner harbor to within a limited distance of the 
shore line, which was defended by artillery, infantry, and 
the police force. 2 

Question of bombardment. — Toward the end of Septem- 
ber much firing took place between the squadron and 

^lue Book, 144, 157, 219-220. 2 For. Rel., 1893, 45-46. 


loyal forts and batteries on shore, and many shots from 
the ships fell in the city, causing much damage to property 
and some loss of life, while business houses remained 
closed because of rumors that the city would be bom- 
barded. Under these circumstances, the commanders of 
the naval forces of the United States, Great Britain, 
France, Italy, and Portugal, then present in the harbor, 
informed Admiral Mello that they would oppose, by force 
if necessary, an attack upon the city; and the diplomatic 
representatives of those powers, " continuing in the line 
of conduct followed up to this time, not to interfere in 
the internal affairs of Brazil, but to assure the protection 
and safet} T of their fellow-countrymen and the higher 
interests of humanity," urgently requested the Brazilian 
Government, in view of the action of the foreign com- 
manders, "to deprive Admiral de Mello of all pretext for 
hostile action" against the city. In the event of a refusal 
of this request, they stated that they would communicate 
the reply to their Governments and ask for instructions. 1 

The Brazilian Government promised to deprive Admi- 
ral Mello of every pretext for hostilities against the city; 
but a misunderstanding immediately arose between the 
Government on the one hand and the foreign diplomatic and 
naval officers on the other as to whether this promise 
included the removal of cannon from some of the batteries 
and whether the work of strengthening the batteries was 
not actually continued; and in view of this misunder- 
standing the diplomatic representatives declared that they 
could not accept "any other responsibility than that 
which may result from the necessity of protecting the 
general interests of humanity and the lives and property 
of their countrymen." 2 

Question of Recognition. — On the 23d of October, 1893, 
Admiral Mello informed Mr. Thompson, through the 
officer in command of the United States naval forces, that 
the insurgents had established a provisional government 
at Desterro, the capital of the State of Santa Catharina, 
and asked that they be recognized as belligerents. This 
request the Government of the United States refused, on 

x For. Rel., 1893, 56. 2 For. Rel., 1893, 58-59. 


the ground that its concession "would be an unfriendly 
act toward Brazil and a gratuitous demonstration of moral 
support to the rebellion, the insurgents having not, appar- 
ently, up to date established and maintained a political 
organization which would justify such recognition;-' but 
Mr. Thompson was instructed "to observe, until further 
advised, the attitude of an indifferent spectator." 1 

Conduct of Commercial Operations. — On the 30th o\ 
October, Mr. Thompson inquired by telegraph whether 
he was "authorized to protect American merchandise on 
Brazilian barges against the insurgents, using force if 
necessary." He explained that cargoes could not be landed 
in Rio de Janeiro unless barges were used. 

Mr. Gresham, then Secretary of State, replied: "There 
having been no recognition by United States of the insur- 
gents as belligerents, and there being no pretense that the 
port of Rio is blockaded, it is clear that if an American 
ship anchored in the harbor employs barges and lighters 
in transferring her cargo to the shore in the usual way and 
in doing so does not cross or otherwise interfere with 
Mello's line of tire and he seizes or attempts to seize the 
barges or lighters, he can and should be resisted. You 
will deliver a copy of this telegram to the commander of 
the insurgents."" 

December 1, 1893, Admiral Mello left Rio de Janeiro in 
his flagship, the Aquidaban, going south, and was suc- 
ceeded in the command of the naval forces in the harbor 
by Rear- Admiral Luis Felippe de Saldanha da Gama, who, 
after having maintained an apparent neutrality, announced 
in a proclamation his espousal of the cause of the revo- 
lution and of the restoration of the Empire, subject to rati- 
fication by the people/ 5 

December 25, 1893, threats of a bombardment having 
again been made, the commanders of the naval forces of 
the United States, France, Great Britain, Austria-Hun- 
gary, Italy, and Portugal replied that, in case such a 
measure should become inevitable, they would, while not 
committing themselves to any course of action, require a 
previous notice of at least two days to be given in order 

^or. Rel., 1893, (53. 2 For. Rel., 1893, 64. 3 For. Rel., 1893, 77, 83. 


to insure the safety of the persons and property of their 
fellow-countrymen. 1 

Meanwhile an effort was made by the foreign represen- 
tatives to secure a safe place for the discharge of foreign 
shipping. This action was taken in consequence of an 
understanding that it was Admiral da Grama's intention to 
prevent all merchandise from reaching either the custom- 
house or the shore. November 6, 1893, the American, 
English, French, German, Italian, and Portuguese naval 
commanders, by a general communication, had informed 
Admiral Mello (1) that they did not recognize the right of 
the insurgent forces to interfere with commercial opera- 
tions conducted anywhere " except in the actual lines of 
fire of the batteries of the land fortifications," and that 
they would protect merchandise not only on board vessels 
of their respective countries, but also on lighters, barges, 
and other transports, whatever might be their nationality^ 
employed by those vessels in commercial operations, and 
(2) that such transports or their tugs would carry at their 
prow the flag of the countiy under whose protection they 
might at the time be. 2 Difficulties and uncertainties, b} T 
reason of acts of the Government as well as of the insur- 
gents, having arisen in the interpretation and enforcement 
of this plan, the question as to what constituted a "line 
of fire" being shifting and unsettled, Mr. Gresham, Jan- 
uary 6, 1894, directed Mr. Thompson "to induce, by coop- 
eration with the commanding officer of the forces of the 
United States, and if possible with others, the insurgents 
to designate a place, if such a place can be found, at 
which vessels of neutral nations may, without interfering 
with military operations, take and discharge cargoes in 
safety." 3 

United States instructions. — January 11, 1894-, Mr. 
Gresham addressed to Mr. Thompson, by mail, full instruc- 
tions, as follows: 4 

"Under date of the 5th instant Captain Picking reports 
the effective fortification and armament of strategic posi- 
tions within the limits of the cit}^. adding that the naval 

1 For. Rel., 1893, 89. 3 For. Rel., 1893, 98. 

2 For. Rel., 1893, 95-96. 4 For. Rel., 1893, 99. 


commanders in conference had thereupon agreed that in 
view of this action they could no longer maintain their 
intention to prevent bombardment. The facts reported 
appear to justify this conclusion. 

"An actual condition of hostilities existing, this Govern- 
ment has no desire to intervene to restrict the operations 
of either party at the expense of its effective conduct of 
systematic measures against the other. Our principal and 
obvious duty, apart from neutrality, is to guard against 
needless or illegitimate interference, by either hostile 
party, with the innocent and legitimate neutral interests 
of our citizens. Interruption of their commerce can be 
respected as a matter of right only when it takes one of 
two shapes — either by so conducting offensive and defen- 
sive operations as to make it impossible to carry on com- 
merce in the line of regular fire, or by resort to the expe- 
dient of an announced and effective blockade. 

44 Vexatious interference with foreign merchant ship 
ping, at a designated anchorage, or with the lighterage of 
neutral goods between such anchorage and a designated 
landing, by random tiring not necessary to a regular plan 
of hostilities and having no other apparent object than 
the molestation of such commerce, is as illegitimate as it 
is intolerable. Hence, we have a right to expect and 
insist that safe anchorage and time and place for loading 
and unloading be designated, if practicable, to be inter- 
rupted only by notice of actual intention to bombard, or 
by notification and effective enforcement of blockade. 

"The insurgents have not been recognized as belliger- 
ents, and should they announce a blockade of the port of 
Eio the sole test of its validity will be their ability to make 
it effective. 

"Our naval commander at Rio has been instructed as 
above with regard to the protection of neutral commerce 
under our flag, which it would seem represents only a 
small part of the foreign commercial interests afloat in the 
harbor of Rio. The British ships there are said to out- 
number those of the United States nine to one, but no sub- 
stantial interference with our vessels, however few. will 
be acquiesced in, unless made effective with regard to all 


foreign shipping, and, moreover, so made effective in pur- 
suance of some tangible plan of orderly military opera- 

The substance of these instructions may be stated thus — 

1. That, in view of the creation of fortified and armed 
strategic positions within the limits of the city, the foreign 
naval forces would not be justified in forcibly preventing 
its bombardment. 

2. That, while an effective blockade of the port by the 
insurgents would be respected, they would not be permitted 
to accomplish indirectly the ends of a blockade by employ- 
ing, either openly or under the guise of military operations, 
acts of force against foreign vessels engaged in commercial 

These instructions recognized the right of the insur- 
gents to carry on hostilities even by means of a commer- 
cial blockade of the port, a measure the enforcement of 
which might involve the extension of the insurgent opera- 
tions to the high seas. They denied to the insurgents the 
right, after allowing foreign commerce to enter the port, 
to seek to accomplish the objects of a blockade either by 
seizing particular vessels or by firing upon them when they 
were engaged in discharging or receiving cargo. 

Question as to coal. — January 12, 1891, Mr. Thompson 
reported that the insurgents had taken possession of an 
island in the harbor, used as a coal depot, and with it had 
captured large quantities of coal belonging to the Royal 
Mail Steamship Compan3 T of England. It seems that Admi- 
ral da Gama issued orders to prevent the landing of coal, 
apparently with the object of preventing the Government 
from obtaining it for its ships. The subject was discussed 
by the diplomatic corps; and the British minister, with 
the concurrence of his Belgian, French, Italian, and 
Portuguese colleagues, declared that all other means would 
be exhausted, perhaps even that of recognition, before a 
resort to force to prevent the execution of the order. 1 

Protection of American vessels. — January 12, 1891, Mr. 
Thompson reported that since the advent of Admiral da 
Gama several American vessels had gone to the docks on 

^or. Rel., 1893, 115, 116. 


their own responsibility, and with the eonsent of the 
Government had discharged and taken in cargo without 
interference; that some German and other foreign ships 
had also proceeded with their operations without interrup- 
tion; and that the Germans had maintained independently 
the position taken by all the powers in regard to com- 
merce, in the communication to Admiral Mello. 1 

On the 26th of January Mr. Thompson wrote that com- 
mercial operations in the harbor continued to be carried 
on t; without an} T serious interference with American in- 
terests." Three da} T s later, however, he telegraphed: 
"American vessels will be convoyed to the dock by the 
Y. S. S. Detroit, and a general engagement may follow if 
she is fired upon, as she is read} T to return the fire." A 
telegram having also been received from Admiral Benham, 
who had succeeded Captain Picking in command of the 
United States naval force, indicating a serious situation, 
Air. Gresham directed Mr. Thompson to make a full 
report, and particularly to state whether any, and if any 
what, change had taken place in the attitude of the United 
States naval force; whether Admiral Benham disagreed 
with the other naval commanders, and if so on what points; 
whether United States merchant vessels were enjoying any 
protection not previously given, and " whether a blockade 
is enforced by the insurgents or any attempt made by 
them to that end." 

Mr. Thompson telegraphed January 31, 1894, the fol- 
lowing reply: 

"Mr. Thompson telegraphs that he is informed by Ad- 
miral Benham, with whom he had an interview on this 
day. that a full report of his action was sent on the pre- 
ceding morning to the Nav} T Department. After notify- 
ing the insurgents and the cit} r that he intended to protect 
by force, if necessary, and to place all American vessels 
who might wish to go to the docks alongside the wharves, 
the war vessels of the United States got under wa} T and 
cleared for action. The Detroit, which was stationed in 
the best position for the ends of protection, had orders to 
fire back if the merchant vessels were fired upon. A shot 

iFor. Eel., 1893, 105-106. 


from one of the insurgents' vessels was fired at, but missed, 
the boat of one of the American vessels that was making- 
preparations for hauling in by means of a line running to 
the shore. The Detroit replied with a shot from a 
(>-pounder, which struck under the insurgent's bows. 
The latter then fired one shot to leeward from her broad- 
side battery and subsequently another over the merchant 
vessel. The Detroit answered with a musket shot, which 
struck the sternpost of the insurgent vessel. The latter 
was hailed by the commander of the Detroit, as he passed 
by, who declared that he would return the fire and sink 
her, if necessary, in the event of her again firing. By 
this time one of the American vessels was moored near 
the dock in her new berth, and a tug came up offering to 
discharge without cost the cargoes of all the vessels. 
Notice was then given to the commander of the insurgent 
forces that the cargoes would be taken out of the vessels 
in the berths they then occupied, but that it was deter 
mined, as theretofore, that if American vessels wished to 
have berths in the docks they would be placed there and 
given full protection by the squadron of the United States. 
The Detroit was afterwards withdrawn and the war vessels 
anchored. He states that the naval or military operations 
of either side were not in the least interfered with by 
Admiral Benham, who entertains no such intention. AVhat 
he proposes to do is to fulfill his duty of protecting the 
citizens and trade of the United States, and of this the 
insurgents have been notified by him. Admiral Benham 
declares that if American vessels get in the line of fire 
during the actual course of legitimate hostilities they 
must take the consequences, but their freedom of move- 
ment must be respected. The insurgents are denied the 
right to search neutral vessels or to seize any part of their 
cargoes, even though such cargoes should comprise such 
articles as would, in case of war between two independent 
Governments, come within the class of merchandise de- 
fined as contraband of war. The insurgents, in their 
present status, would commit an act of piracy by forcibly 
seizing such merchandise. 

"He adds that, to the best of his information, all the 
foreign commanders agree with Admiral Benham, and that 


the effective action of last Monday has restored complete 
tranquillity, broken the attempted blockade of commerce 
and trade, and placed everything in even motion." 

Air. Gresham, in acknowledging, on February 1, the 
receipt of this telegram, said ''that Admiral Benham has 
acted within his instructions." 1 

On the 2nd of February Air. Thompson telegraphed that 
the insurgents had ''withdrawn their restrictive orders," 
that ships of all nationalities were "no longer kept from 
coming to the shore," and that a favorable progress was 
noticeable in commerce, all of which was due "to the 
influence of the war vessels of the United States having 
stopped the insurgents' fire against American merchant 
vessels." 2 

When Admiral Benham took the action which has been 
narrated, Air. Gresham's instructions to Air. Thompson of 
the 11th of January had not reached Rio de Janeiro. 
Those instructions seem, however, to have been intended 
merely as an amplified and explanatory restatement of the 
position held by the United States from the beginning; 
and there is no reason to suppose that Mr. Gresham, when 
he telegraphed that the Admiral had "acted within his 
instructions," contemplated any departure from that posi- 
tion. On the contrary, his first inquiry, when advised of 
a serious situation, was whether any " change" had taken 
place in the attitude of the United States naval forces, 
and "whether a blockade is enforced by the insurgents or 
any attempt made by them to that end." As reported, 
Admiral Benham's action did not appear to have involved 
any question as to the right of the insurgents to prevent 
the supply of contraband of war to their antagonist; but 
it must be admitted that the intention to deny them such 
a right was declared in Mr. Thompson's telegram, and it 
was explicitly announced by Admiral Benham to Admiral 
da Gama in a letter of January 30, 1894, a copy of which 
could not, however, have reached Washington in the regu- 
lar course till the insurrection was practically at an end. 
With regard to what had taken place, Admiral Benham 
in that letter said: "In no case have I interfered in the 

^or. Rel., 1893, 115-117. 2 For. Rel., 1893, 120. 


slightest way with the military operations of either side 
in the contest now going on, nor is it my intention to do 
so. * * * My duty is to protect Americans and Ameri- 
can commerce, and this I intend to do to the fullest extent- 
American vessels must not be interfered with in any 
way in their movements in going to the wharves or about 
the harbor, it being understood, however, that they must 
take the consequences of getting in the line of tire where 
legitimate hostilities are actually in progress." 

So much as to what had actually been done. Admiral 
Benham added, however, that there was " another point," 
of which it might be " well to speak." This was: " Until 
belligerent rights are accorded you, you have no right to 
exercise any authority whatever over American ships or 
property of any kind. You can not search neutral vessels 
or seize any portion of their cargoes, even though they be 
within the class which may be clearly defined as contra- 
band of war, during hostilities between two independent 
governments. The forcible 1 seizure of any such articles 
by those under your command would be, in your present 
status, an act of piracy." * 

Mr. Thompson, in a telegram of February 1, 1894, stated 
that as the situation was understood by him Admiral Ben- 
ham had maintained the same attitude as was from the hrst 
assumed by the United States forces, u except perhaps 
by refusing to recognize da Gama's authority." 2 This 
statement, read in connection with Admiral Benham's letter 
to Admiral da Gama, seems to refer, at least inclusively, 
to the question of preventing the supply of contraband. 

This question, which may at any moment become a prac- 
tical one to the naval officer, is left by the record in a posi- 
tion that can hardly be deemed satisfactory. Tt may be 
argued that, as the intention to prevent the insurgents 
from interfering with the supply of contraband articles to 
the government was clearly declared and not expressly 
disapproved, it was impliedly approved. On the other 
hand, it may be argued that, as the question was appar- 
ently not involved in the case that had arisen, the approval 
of what was done does not necessarily imply approval of 

^or. Rel., 1893, 122. - For. Rel, 1893, 118. 

6482—01 9 


all that was said: that the question of vexatiously inter- 
rupting commerce by firing upon or seizing innocent neu- 
tral ships, which is not permissible in any case, and that 
of preventing the supply of contraband are radically dif- 
ferent: that by Mr. Gresham's instructions of January 11, 
L894, the right to carry on hostilities, even by means of a 
blockade, was expressly admitted to belong to the insur- 
gents, and that this necessarily implied that they possessed 
the right to prevent within the national theater of hostili- 
ties the supply of contraband of war to their adversary. 
The record being thus inconclusive 1 , the question may be 
considered in the light of elementary principles. 

1. The right of insurgents to carry on hostilities against 
the titular government and the recognition of them as 
belligerents are different things and are not interdepend- 
ent. When we speak of the "recognition" of belliger- 
ency, we necessarily imply the preexistenee of tin 1 condi- 
tion of things which we in that form acknowledge. It 
would not be difficult to cite instances in which insurgents 
have overthrown the titular government and established 
one of their own in its place without having received from 
any foreign power " recognition " as belligerents. Where 
such a contest exists foreign powers, if they profess to be 
neutral in the conflict, acknowledge, with or without rec- 
ognition of belligerency, the duty of noninterference. 
So clearly is this the case that in recent times the word 
••insurgency" has found its way into the terminology of 
law and diplomacy, as a term denoting the existence of 
a state of domestic hostilities, without recognition of 

•2. The existence of domestic hostilities does not confer 
upon foreign powers any legal authority within tin 4 juris- 
diction of the nation within which the insurrection pre- 
vails: nor is such authority gained either by conceding or 
withholding recognition of belligerency. As regards rela- 
tions with foreign powers, tin 4 nonrecognition of belliger- 
ency has two results. The first is that the parties to the 
conflict are denied the right to interfere with neutral ves- 
sels on the high seas. There all nations are. in time of 
peace, equal, none possessing any authority over another: 
it is oul} T in the abnormal condition of recognized belliger- 


ency that authority to interfere with such vessels on the 
high seas is conceded. The second result is, that the titu- 
lar government remains presumptively responsible for the 
redress of injuries done to neutral aliens within the national 
jurisdiction. Should a foreign government recognize the 
insurgents as belligerents, it would therein- elect to look 
to the insurgent authorities for the redress of injuries 
which they may commit, and would to that extent relieve 
the titular government. But while responsibility may 
thus shift from one set of authorities to another, the 
national sovereignty remains supreme and the national 
.jurisdiction inviolate. Within such jurisdiction foreign 
powers can set up no claim to equality with the titular 
sovereign as a ground on which to oppose the exercise by 
either party of the rights of war. Their right of inter- 
ference is limited to acts of necessary self-defense, under 
circumstances such as justify a disregard of the rule of 
territorial sovereignty. 

Of these distinctions an illustration may be found in a 
case which occurred in Colombia in 1885. During the 
insurrection which prevailed in that year certain vessels 
belonging to the United Magdalena Steam Navigation 
Company, an American corporation, were seized by the 
insurgents. The case having been laid by the company 
before the Government of the United States, Dr. Francis 
Wharton, who was then Solicitor of the Department of 
State, made, April 21, 1885. a report, in the course of 
which he said: 

"When vessels belonging to citizens of the United 
States have been seized and are now navigated on the high 
seas by persons not representing any government or 
belligerent power recognized by the United States, such 
vessels may be captured and rescued by their owners, or 
by United States cruisers acting- for such owners." 1 

In a later report of May 18, 1885, referring to the same 
question, Dr. Wharton repeated this opinion, and recom- 
mended that the Secretary of the Navy be requested to 
give instructions "that tin 4 vessels thus unlawfully seized 
and now possessed by the insurgents be retaken when on 

'For. Rel., L885, 212. 


the high sous by any force the United States may be able 
to use for that purpose." He added that, while it might 
he conceded that the insurgent crews manning the vessels 
unlawfully seized could not be regarded as pirates, yet 
" vessels belonging to citizens of the United States so 
seized by them may he rescued by our cruisers acting for 
the owners of such vessels in the same way that we could 
reclaim vessels derelict on the high seas." May It'. 1885, 
Mr. Bayard, Secretary of State, inclosed copies of these 
reports to Mr. Scruggs, then minister of the United States 
at Bogota, and referred to the Department's recommenda- 
tion "that proper instructions be immediately issued to 
the commander of the naval authorities in Colombia for 
the recapture, when on the high seas, by any force the 
United States may be able to use for that purpose, of the 
vessels of the Magdalena Steam Navigation Company thus 
unlawfully seized and possessed by the insurgents." 1 

It is to be observed that in this case the assertion of 
the right of the United States naval forces to recapture 
the vessels was uniformly limited to the high seas. Al- 
though it by no means follows that the Government might 
not. under different circumstances, have gone further. 
this limitation is to be particularly noted, since the seizure 
of the vessels by the insurgents appears to have been an 
unlawful act of violence. 

The position taken by the Department of State in L885 
has lately been reaffirmed, it being stated — in a case pre- 
senting: similar conditions — that the vessel ••could here- 


captured for the benefit of its lawful owners on the high 
seas by our naval force." 2 

With regard to the instructions of Mr. Fish, as quoted 
in the solution. 5 touching certain vessels in the service of 
insurgents against the Government of Haiti, it may be 
pointed out that no right to seize such vessels within the 
territorial waters of that country i- asserted. The general 

'For. Rel., 1885, 211. 

-Mr. Hay. Secretary of State, to Mr. Merry. March :',. L899, MS. 

Instr. to Central America. XXI. 427, citing Mr. Bayard to Mr. Scruggs, 

May L9, L885, For. Bel., 1885, 211; also, Mr. Bay, Secretary of State. 

to the Secretary of the Navy. March L3, 1899, 235 MS. Dom. Let.. 41o. 

Supra, }». L09. 


police power which all nations possess to seize and punish 
pirates obviously does not extend to that part of the sea 
which lies within the jurisdiction of particular nations. 
In the case before Mr. Fish the vessels in question had 
been declared by the Haitian Government to be piratical, 
and on the strength of this declaration the secretary of 
foreign affairs had addressed to the several members of 
the diplomatic corps at Port au Prince a note requesting 
that each Government whose representative was thus 
addressed would give, by means of its naval forces, "an 
adequate and efficacious cooperation in maintaining for 
the marine of the civilized world the securities of the 
seas." and * c guarantee the protection of private prop- 
erty.** Replying to this request. Mi'. Fish, in a passage 
which immediately follows that quoted in the 1 solution, 
but which has not heretofore been printed, said: 

"No facts have been presented to this Government to 
create a belief that the operations of the vessels in ques- 
tion have been with a view to plunder or had any other 
than a political object. That object is hostile to a govern- 
ment with which the United States have maintained a 
friendship that it requires no fresh manifestation to evince. 
We deem it most decorous to leave it to that government 
to deal with the hostile vessels as it may find expedient, 
reserving the consideration of our action in respect to 
them till some offense, actual or apprehended, to the United 
States shall render it imperative." 1 

In a recent case the Department of State discussed a 
suggestion which had been put forward in a country in 
which an insurrection prevailed, that the acts of insur- 
gents were to be considered as mere u lawlessness'" against 
the established authority, and that any injury which they 
might do to the persons or property of foreign noncom- 
batants should be "looked upon as outlawry on mankind." 
for the prevention of which the naval forces of foreign 
powers might be employed. With regard to this sugges- 
tion the Department of State expressed the opinion that 
it failed to discriminate between the right of a foreign 

I Mr. Fish, See. of State, to Mr. Bassett, Sept. 14, 1869, MS. Instr. 
to Haiti, I, 150. 


naval force to extend protection against '* wanton injury 
by whatever aggressor," and the supposed obligation to 
treat the acts of insurgents as outlawry: that this supposed 
obligation, since it proceeded upon the theory that the 
insurrection itself was to be treated as an act of lawless- 
ness, would imply the duty of siding with the titular au- 
thorities against the insurgents; that this would obviously 
be incompatible with the dictates of neutrality; and that 
the only duty of foreign naval forces was to shield the 
persons and property of alien neutrals placed under their 
protection against "acts of wanton injury." to which end 
they might **in extreme need be rightfully employed." 1 

8. We have seen (1) that the right of parties to a domes- 
tic conflict to carry on hostilities does not depend upon the 
recognition of belligerency, and (-2) that, as the existence 
of domestic hostilities confers no authority upon foreign 
powers within the jurisdiction of the nation in which the 
insurrection prevails, such powers are not allowed to inter- 
fere there except upon the ground of necessary self-defense 
against acts of wanton injury. The question therefore 
arises whether the act of insurgents in preventing the 
supply of contraband, such as arms and munitions of war, 
to the government against which they are carrying on 
hostilities is such an injury, or whether it can be consid- 
ered as an injury at all. In order to answer this question 
it is necessary to consider the nature of the act which the 
insurgents seek to prevent. 

Much misapprehension as to the quality of the act of sup- 
plying contraband articles, such as arms and munitions of 
war, to the parties to an armed conflict, has arisen from 
the statement so often made that the trade in contraband 
is lawful and not prohibited. This statement, when used 
with reference to the preventive duties of neutral govern- 
ments, is (mite correct, but if applied to the duties of 
individuals it is quite incorrect. The acts which indi- 
viduals are forbidden to commit and the acts which neu- 
tral governments are obliged to prevent are by no means 
the same; precisely as the acts which the neutral govern- 
ment is obliged to prevent and the acts which it is forbid- 

1 Mr. Hay. Sec. of state, to Sec of the Navy, Oct. 17, 1899, 240 MS. 
I lom. Let., 534. 


den to commit are by no means the same. The supply of 
materials of Avar, such as arms and ammunition, to either 
party to an armed conflict, although neutral governments 
arc not obliged to prevent it, constitutes on the 4 part of 
the individuals who engage in it a participation in hostili- 
ties, and as such is confessedly an unneutral act. Should 
the government of the individual itself supply such arti- 
cles it would clearly depart from its position of neutrality. 
The private citizen undertakes the business at his own 
risk, and against this risk his government can not assure 
him protection without making itself a party to his unneu- 
tral act. 

These propositions are abundantly established by au- 

Maritime states, says Heffter, have adopted, "in a com- 
mon and reciprocal interest, the rule that belligerents have 
the right to restrict the freedom of neutral commerce so 
far as concerns contraband of war. and to punish viola- 
tions of the law in that regard. * * * This right has 
never been seriously denied to belligerents." ' 

Says Kent: "'The principal restriction which the law of 
nations imposes on the trade of neutrals is the prohibition 
to furnish the belligerent parties with warlike stores and 
other articles which are directly auxiliary to warlike pur- 
poses." 2 

"If the neutral [government]," says Woolsey, "should 
send powder or balls, cannon or rifles, this would be a 
direct encouragement of the war. and so a departure from 
the neutral position. : * Now. the same wrong is 

committed when a private trader, without the privity of 
his government, furnishes the means of war to either of 
the warring parties. It may be made a question whether 
such conduct on the part of the private citizen ought not 
to be prevented by his government, even as enlistments 
for foreign armies on neutral soil are made penal. But it 
is difficult for a government to watch narrowly the opera- 
tions of trade, and it is annoying for the innocent trader. 
Moreover, the neutral ought not to be subjected by the 
quarrels of others to additional care and expense. Hence 

1 Heffter, Droit Tut., Bergson's ed., by Heffcken, 1883, pt 384. 
2 Kent, Int. Law, 2d ed., by Abdy, :«0. 


by the practice of nations ho is passive in regard to viola- 
tions of the rule- concerning contraband, blockade, and 
the like, and leaves the police of the sea and the punishing 
or reprisal power in the hands of those who are most inter- 
ested, the limits being fixed for the punishment by com- 
mon usage or law. :: " * * It is admitted that the act 
of carrying to the enemy articles directly useful in war i- 
a wrong, for which the injured party may punish the neu- 
tral taken in the act." ' 

Says Manning: "The right of belligerents to prevent 
neutrals from carrvino- to an enemv articles that limv sen <• 
him in the direct prosecution of his hostile purposes has 
been acknowledged by all authorities, and is obvious to 
plain reason. * * The nonrecognition of this right 

" :; ~ * * would place it in the power of neutrals to inter- 
fere directly in the issue of wail — those who. by defini- 
tion, are not parties in the contest thus receiving a power 
to injure a belligerent, which even if direct enemies they 

would not possess." 8 

"A belligerent," saysCreasy, "has by international law 
a right to seize at sea. and to appropriate or destroy, 
articles, to whomsoever they may belong, which arc 
calculated to aid the belligerent's enemy in the war. 
and which are being conveyed by sea to that enemy's 
territory." 3 

"The neutral power." says Holland, "is under no obli- 
gation to prevent its subjects from engaging in the run- 
ning- of blockades, in shipping or carrying contraband, or 
in carrying troops or dispatches from one of the belliger- 
ents; hut. on the other hand, neutral subjects so engaged 
can expect no protection from their own government 
against such customary penalties as may be imposed upon 
their conduct by the belligerent who is aggrieved by it." 4 

"By this term [contraband] we now understand." says 
Baker, "a class of articles of commerce which neutrals 
are prohibited from furnishing to either one of the bellig- 
erents, for the reason that by so doing injury is done to 

1 Woolsey, Int. Law. ><* 17s. 179. 

- Manning's Law of Nation. Aiiim-'> edition, 352. 

3 Creasy, First Platform oflnt Law, 604. 

4 Ilollaml. Studies in International Law. 124—125. 


the other belligerent. To carry on this class of commerce 

is deemed a violation of neutral duty, inasmuch as it nec- 
essarily interferes with the operations of the war by 
furnishing- assistance to the belligerent to whom such 
prohibited articles are supplied." 1 

It may be observed that in some of the foregoing quota- 
tions the question is discussed as one affecting the rights 
of "belligerents." But the question of belligerency is 
important only as affecting the question of the right of 
seizure on the high seas. The circumstance that the par- 
ties, in consequence of the 1 nonrecognition of their belliger- 
ency, are not permitted to exercise visitation and search 
on the high seas does not alter the nature or detract from 
the unneutral character of the act of supplying arms and 
munitions of war to the parties to an armed conflict. 

The fact that the supplying of such articles is considered 
as a participation in the hostilities is shown not only by 
the authority of writers, but also by numerous state 

President Washington, in his famous neutrality procla- 
mation of April j?2, 17^>. countersigned by Mr. Jefferson, 
as Secretary of State, announced "that whosoever of the 
citizens of the United States shall render himself liable to 
punishment or forfeiture under the law of nations, by 
committing, aiding, or abetting hostilities against any of 
the said powers, or by carrying to any of them those arti- 
cles which are deemed contraband by the modern usage of 
nations, will not receive the protection of the United 
States against such punishment or forfeiture." 2 

Mr. Jefferson, in the subsequent note to the British 
minister, quoted in Wharton's Digest (I, 510). observes 
that in the case of contraband the law of nations is satis- 
fied with the "external penalty" pronounced in the Presi- 
dent's proclamation. 

President Grant, in the proclamation issued by him 
August 22, 1870. during the Franco-German war. de- 
clares, in the most precise terms: 

44 W 7 hile all persons may lawfully, and without restric- 
tion, by reason of the aforesaid state of war. manufacture 

1 Baker' s First Steps in International Law, 281. 
2 Am. State Papers, For. Rel., I, 140. 


and sell within the United States arms and munitions of 
war. and other articles ordinarily known as 'contraband 
of war.' yet they can not carry such articles upon the 
high seas for the use or service of either belligerent, 
* * * without incurring the risk of hostile capture 
and the penalties denounced by the law of nations in that 
behalf. And I do hereby give 1 notice that all citizens of 
the United States, and others who may claim the protec- 
tion of this Government, who may misconduct themselves 
in the premises, will do so at their peril, and that they 
can in no wise obtain any protection from the Govern- 
ment of the United States against the consequences of 
their misconduct." ' 

In the neutrality proclamations, issued during the war 
between the United States and Spain, the following pro- 
visions are found, in which the furnishing of arms and 
munitions of war to either party to the conflict is expressly 
treated as an act of unneutrality. 

The Brazilian Government, by a circular of April 29, 
L898, declared to be "absolutely prohibited" the "expor- 
tation of material of war from the ports of Brazil to those 
of either of the belligerent powers, under the Brazilian 
flag or that of any other nation." 2 

The King of Denmark issued April ^J). 1898, a procla- 
mation prohibiting Danish subjects "to transport contra- 
band of war for any of the belligerent powers." 8 

Great Britain's proclamation of April 23, 1898, warned 
British subjects against doing any act "in derogation of 
their duty as subjects of a neutral power." or "in viola- 
tion or contravention of the law of nations." among which 
was enumerated the carrying of "arms, ammunition, mili- 
tary stores or materials;*- and declared that "all persons 
so offending, together with their ships and goods, will 
rightfully incur and be justly liable to hostile capture, 
and to the penalties denounced by the law of nations." 1 

The governor of Curacao, acting under instructions of 
the minister of the colonies of the Netherlands, issued a 

1 Wharton's Dig., Ill, <><)7-H08. 

- Proclamations and Decrees during the War with Spain, 13. 

3 Proclamations, 22. 

4 Proclamations, 35. 


decree prohibiting- " w the exportation of arms, ammunition, 
or other war materials to the belligerents." ' 

Portugal, while stating, in Article IV of her neutrality 
decree of April 29, 1898, that "all articles of lawful com- 
merce" belonging to subjects of the belligerent powers 
might be carried under the Portuguese flag, and that such 
articles belonging to Portuguese subjects might be carried 
under the flag of either belligerent, yet declared: "Articles 
that maybe considered as contraband of war are expressly 
excluded from the provisions of this article." 2 

Were further proof needed of the unneutral and noxious 
character of contraband trade, it might be found in the 
doctrine of infection, under which innocent cargo is con- 
demned when associated with contraband merchandise of 
the same proprietor, and the transportation penalized by 
loss of freight and expenses, and. under various circum- 
stances, b}^ confiscation of the ship. 3 

From what has been shown it may be argued that, 
without regard to the recognition or nonrecognition of 
belligerency, a party to a civil conflict who seeks to pre- 
vent, within the national jurisdiction and at the scene of 
hostilities, the supply of arms and munitions of war to his 
adversaiy commits not an act of injury, but an act of self- 
defense, authorized by the state of hostilities; that, the 
right to carry on hostilities being admitted, it seems to fol- 
low that each party possesses, incidentally, the right to 
prevent the other from being supplied with the weapons of 
war; and that any aid or protection given by a foreign 
government to an individual to enable him with impunity 
to supply either part} 7 with such articles is to that extent 
an act of intervention in the contest. 

1 Proclamations, 27. 

2 Proclamations, 61. (See also, the proclamation of the toatai oi 
Shanghai, id., 20, and the instructions of the Haitian Government, 
id., 39.) 

:i Walker's Science of Int. Law, 511-512. 


Maritime Law in the War with Spain. 

By reason of the nature and incidents of the ponfliet, 

the predominant features of the recent war between the 
United States and Spain, from the legal as well as from 
the military point of view, were maritime. Important 
rules were announced, and many interesting- questions were 
determined, as to the conduct of hostilities at sea, particu- 
larly with reference to commercial intercourse and the 
treatment of merchant ships and other private property. 
In order, however, to present the subject in its proper 
relations it is necessary to make certain observations as 

to the position of the parties prior to the outbreak of 


By international law up to the present time the ships of 
an enemy are lawful prize, but their cargoes may or may 
not be subject to condemnation. On the other hand, ships 
of a neutral are not in themselves good prize, but may 
become so as the result of unneutral conduct — such as the 
attempt to break a blockade; and their cargoes, like those 
of enemy ships, may or may not be subject to confiscation, 
according to circumstances. As to the treatment of cargo. 
the following rules have been acted upon: 

1. The goods of an enemy may be seized and confiscated 
whether found in an enemy or in a neutral ship. 

2. Goods of an enemy, contraband of war excepted, are 
exempt from seizure and confiscation when on board of a 
neutral ship. This is known as the rule of "free ships, 
free goods." 



3. The goods partake of the character of the ship: If 

the ship is neutral, they are free; if the ship belongs to 
an enemy, they arc condemned. This is known as the 
rule of "free ships, free goods: enemy ship, enemy 

As the last rule is enforced only under special treaty 
stipulations, it does not at the moment concern us. The 
great contest has been waged between the first and second 
rules. The first, that the fate of the goods is determined 
by the belligerent or neutral character of the owner, with- 
out regard to whether the ship is enemy or neutral, was 
at one time the common law of Europe. It was laid down 
in the Oonsolato del Mare and was universally accepted. 
But about the middle of the seventeenth century a new 
rule began to be introduced, and it was stipulated in vari- 
ous treaties that the goods of an enemy should be free 
when on board a neutral ship. This rule was in time 
embodied in the marine ordinances of France. It was 
>trenuouslv advocated by the Dutch. It was embraced in 
the declaration of the Empress of Russia of 1780. which 
formed the basis of the first armed neutrality. Great 
Britain generally adhered to the old rule, and in the mari- 
time wars of the eighteenth century the new rule was little 
observed. Eventually, however. Great Britain came to 
accept the new rule. When the Crimean War broke out. 
she joined France in proclaiming that enemy property on 
board a neutral ship would be respected. Then, at the 
close of the war. came the famous Declaration of Paris of 
April If), 1856, by which the signatory powers (France, 
Great Britain. Russia, Prussia, Austria. Sardinia, and the 
Ottoman Porte), with a view k *to establish a uniform rule 
on a point so important," announced their adherence to 
the rule and engaged to invite other powers to adhere to 
it. The declaration contained in all four rules, which 
were as follows: 

"1. Privateering is and remains abolished. 

'"2. The neutral flag covers an enemy's goods, with the 
exception of contraband of war. 

"3. Neutral goods, with the exception of contraband of 
war. are not liable to capture under the enemy's flag. 


"4. Blockades in order to be binding must be effective: 
that is to say, maintained by a force sufficient really to 
prevent access to the coast of the enemy/* 

These rules, in accordance with the resolution of the 
Congress of Paris, were brought to the notice of the pow- 
ers for acceptance or rejection as a whole, and were ac- 
cepted by all the German States, by the Two Sicilies and 
the Papal States, and, indeed, by all the powers except 
the United States, Mexico, Spain, and Venezuela. The 
United States, whose objection was based upon the fact 
that while privateering was to be abolished the capture of 
enemy ships and of enemy property on board such ships 
was still to be permitted, offered to adhere to the declara- 
tion on condition that it be so amended as to exempt pri- 
vate property at sea altogether from capture, save in the 
case of contraband or of blockade. This offer, which was 
made in the closing days of the administration of Presi- 
dent Pierce, was withdrawn by President Buchanan before 
any definite action upon it was taken. On the outbreak 
of the civil war the United States offered to accept the 
declaration in its entirety, but this offer came to naught, 
since it was found to involve the recognition of the right 
of the United States to bind the Confederacy, which had 
authorized the issuance of privateering commissions. 

As the United States had not become a party to the 
Declaration of Paris, it is important to ascertain what was 
its actual position with respect to the rules therein laid 
down, prior to the war with Spain. As to the first and 
fourth rules, this question may readily be answered. The 
rule that blockades in order to be binding must be effect- 
ive, had always been maintained by the United States as 
a principle of international law. On the other hand, the 
United States, while seeking on various occasions to estab- 
lish the exemption of private property at sea from capture, 
had maintained the right, so long as such an exemption 
was not established, to employ privateers, although dur- 
ing the civil war the Government issued no commissions 
for that purpose. But, as to the second and third rules, 
the position of the United States has often been imper- 
fectly apprehended. The rule that neutral goods, with 


the exception of contraband of war. are not liable to cap- 
ture under the enemy's flag, has always been acted upon 
by the United States, save in case 1 of special treaty stipu- 
lations to the contrary: but, with the rule that free ships 
make free goods, the case is different. Mr. Seward. 
referring to this rule, as embodied in the Declaration of 
Paris, once said: "We have always practiced on the prin- 
ciples of the declaration." ! Similar expressions may be 
found in the works of publicists, hut they are inaccurate. 
Our courts, except where a treaty prescribed a different 
rule, had uniformly confiscated enemy property, even 
when it was seized under a neutral Hag. And what is to 
be said as to our treaties? In only ten of them, made 
with seven powers — Algiers. 1816; Morocco, 1787 and 
L836; Prussia, 1785 and L828; Spain. 1 Tt >r> ; Tripoli. 1796 
and 1805; Tunis. 1797; and Venezuela, 1860 — had the rule 
of "free ships, free goods" been stipulated for uncondi- 
tionally, contraband always excepted. In six treaties- 
Russia. 1854; Two Sicilies. 1855; Peru. 1856; Bolivia. 
L858; Hayti, 1864, and the Dominican Republic. 1867- 
the principle of "free ships, free goods" was recognized 
as "permanent and immutable." but the contracting par- 
ties engaged to apply it only to the commerce 1 and naviga- 
tion of such powers as should "consent to adopt" it as 
"permanent and immutable." Of these treaties those 
with the Dominican Republic and the Two Sicilies had 
ceased to be in force, and that with Peru had been super- 
seded. In our treaty with Spain of 1819 the principle of 
"free ships, free goods" was acknowledged, hut only in 
regard to the property of enemies whose governments 
recognized it. Similar stipulations may be found in our 
treaties with Italy of 1871 and Peru of 1887, and indeed 
in the first treaty ever concluded by the United States — 
the treaty of amity and commerce with France of Febru- 
ary *i. 177s. But in the treaty with France they were 
coupled with yet another stipulation restrictive of neutral 
commerce —namely, that the goods of the citizens of the 
contracting parties should he confiscated, if laden on the 
ship of an enemy, unless they were shipped before the 

1 Instruction t<> Mr. Dayton, minister t<> France. September 10, 
1st;!. Dip. (•,„•.. L861, 233, 235. 


declaration of war, or within a certain time afterwards in 
ignorance of the declaration. These associated stipula- 
tions are found more general^ than any others in our 
treaties relating to neutral rights, as may be seen by the 
following list: Brazil, 1828; Central America, 1825; Chile, 
1832; Colombia, 1824 and 1846; Ecuador, 1839; France, 
1800; Guatemala, 1849; Mexico, 1831; the Netherlands, 
1782; Peru, 1851; Peru-Bolivia, 1836; Salvador, 1850 and 
1870; Sweden, 1783; Sweden and Norway, 1816 and 1827; 
and Venezuela, 1836. But at the outbreak of the war 
with Spain all these treaties, except those with Colombia 
(1846), Salvador (1870), and Sweden and Norway (1827), 
had ceased to be in force. With Great Britain we had 
had no engagement on the subject except that embodied 
in the treaty of 1794, which acknowledged the rule of the 
common law. 
Such was the situation on the eve of the war with Spain. 


April 20, 1898, the President approved a joint resolution 
of Congress, by which it was declared (1) that " the people 
of Cuba are, and of right ought to be, free and indepen- 
dent;" (2) that it was the duty of the United States to 
demand, and that the United States did thereby demand, 
that Spain at once relinquish her authority and govern- 
ment in Cuba and withdraw her land and naval forces from 
the island and its waters; (3) that the President was directed 
and empowered to use the land and naval forces of the 
United States and to call into actual service the militia, to 
such extent as might be necessar}^ to carry these resolutions 
into effect; and (4) that the United States disclaimed any 
disposition or intention to exercise sovereignty, jurisdic- 
tion, or control over the island except for the pacification 
thereof, and asserted its determination, when that was ac- 
complished, to leave the government and control of the 
island to its people. 

On the same day the Spanish minister at Washington 
asked for and obtained his passports, and the text of the 
joint resolution was cabled by the United States to its min- 
ister in Madrid for communication to the Spanish Govern- 
6482—01 10 


ment. Hut before it could he so communicated the Amer- 
ican minister, on April 21, received from the Spanish 
Government a note, in which it was stated that the joint 
resolution was considered as an obvious declaration of war. 
and that all diplomatic relations consequently were severed. 1 
On April 22 the President issued a proclamation, in which, 
referring to the joint resolution of Congress, he declared 
a blockade of ports on the north coast of Cuba from Car- 
denas to Hahia Honda, and of the port of Cienfuegos on 
the south coast. The blockade was instituted on the same 
day. By an act of Congress approved April 25, 1898, war 
was declared to have existed since April 21, inclusive, and 
the President was directed and empowered to use the en- 
tire land and naval forces of the United States, and to call 
into actual service the militia for the purpose of carrying 
it on. 


By the convention signed at Geneva, August 22, 1864. 
commonly called the Red Cross convention, various hu- 
mane regulations were adopted for the amelioration of the 
condition of the wounded in the field. In 1868 a second 
international conference was held at Geneva, and fifteen 
articles, known as the "additional articles of 1868," were 
proposed, of which Articles VI to XV related exclusively 
to marine warfare. During the Franco-German war the 
additional articles were adopted as a modus vivendi be- 
tween the belligerents. On March 1, 1882, they were 
acceded to by the United States, but the accession was 
subject to a general exchange of ratifications, which the 
powers failed to effect. Nevertheless, although the addi- 
tional articles had not become internationally operative, 
the United States, on the breaking out of hostilities, at 
once commissioned the ambulance ship Solace to accom- 
pany the Atlantic fleet as a noncombatant hospital ship, 
and, in the spirit of those articles, to render aid to the 
sick, wounded, and dying. April 23, 1898, the Swiss 
minister at Washington proposed the formal adoption of 

1 H. Ex. Doc. 428, 55 Cong., 2 sess. 


the additional articles, with certain amendments or eluci- 
dations, by the United States and Spain as a modus vivendi 
pending hostilities. This proposal was accepted by both 
Governments. 1 


On the outbreak of the war, announcements of neutrality 
were made by numerous powers. These announcements 
in some cases were brief and informal, and in others took 
the shape of proclamations and decrees, in which various 
rules, more or less comprehensive in their nature, were 
laid down. 2 Before ttie commencement of hostilities, the 
United States purchased two warships then building in 
England — a torpedo boat, and the Brazilian cruiser Almi- 
rante Abreu. When war was announced, the British 
Government promptly prohibited the departure of the 
nearly completed torpedo boat, which had been named 
the Somers, and stopped work on the cruiser. This action 
appeared to be in conformity with the obligations of neu- 
trality, and was acquiesced in by the United States. 3 The 
war ships were purchased about the middle of March, 1898. * 
Permission for the departure of the Somers, which had 
been stored at Falmouth, was granted on the practical 
conclusion of the peace negotiations at Paris, the United 
States having, besides, assured the British Government 
that in the event of the renewal of hostilities with Spain 
the vessel would not be made use of. 6 

An interesting question arose as to the U. S. S. Mono- 
cacy in China. By communications of the tsungli yamen 

'For. Rel., 1898, 1148-1159. 

2 Proclamations and Decrees during the war with Spain : Washing- 
ton, Government Printing Office, 1899. 

3 Mr. Hay, Sec. of State, to Mr. House, Feb. 15, 1900, 243 MS. Dom. 
Let., 70. 

4 Mr. Sherman, Sec. of State, to Mr. White, charge d'affaires at Lon- 
don, telegrams, March 7 and 9, 1898, MS. Instr. to Gr. Br., XXXII, 423, 
424; Mr. Day, Acting Sec. of State, to Mr. White, March 13, 1898, Id. 

5 Mr. Hay, Sec. of State, to Mr. White, Nov. 19, 1898, MS. Instr. to 
Gr. Br., XXXIII, 33; Mr. White to Mr. Hay, tel., Dec. 9, 1898 (stating 
that permission was granted), MS. Desp., Gr. Br. ; Mr. Hay to the Sec. 
of the Navy, Dec. 10, 1898, 233 MS. Dom. Let., 175; Mr. Hay to Mr. 
White, Dec. 13, 1898, MS. Instr. Gr. B., XXXIII, 45. 


to Mr. Denby, United States minister at Pekin, of May 2 
and May 9, L898, official announcement was made that the 
yanien had telegraphed the viceroys, governors, and 
taotais-general of the Yangtze and maritime provinces to 
instruct their subordinates to observe the laws of neu- 
trality. In the communication of the 9th of May it was 
stated that, in due observance of international law, vessels 
of war of the belligerents would not be allowed to "anchor 
in Chinese ports." In the proclamation of the taotai of 
Shanghai, issued May 22, 1898, it was more precisely 
declared that such vessels must not use Chinese-controlled 
waters and ports for anchorage or fighting purposes, or 
anchor there for lading war supplies; and that, should 
any such vessel enter a Chinese port, except under stress 
of weather or for necessary food or repairs, it must not 
remain over twenty-four hours. \ A question having arisen 
as to the applicability of these provisions to the 2£onocacy* 
an antiquated ship of war of light draft, which had, because 
of her adaptation to river service, for years been kept in 
Chinese waters for the protection of* American citizens, 
the Government of the United States maintained (1) that, 
as the circumstances of her long-continued emplo3 T ment 
and her unfitness for service at sea rendered it apparent 
that her presence was not connected with the war, she did 
not come within the operation of rules designed to pre- 
vent the use of neutral waters as a base of hostilities, and 
(2) that the existence of war between the United States 
and a third power could not deprive the former of the 
right to take the customary measures for the protection 
of its citizens in China. 2 

In the latter part of August, 1898, ten days after the 
signature of the preliminary peace protocol, the British 
Government granted permission for Admiral Dewey to 
dock, clean, and paint the bottoms of the vessels under his 
command at Hongkong. In making the application for 
this privilege the United States observed that such an 
operation could not, under the existing circumstances, be 
considered as connected with actual hostilities, but was in 

1 Proclamations and Decrees during the War with Spain, 18-20. 
2 Mr. Day, Sec. of State, to Mr. Denby, June 7, 1898, MS. Instr. to 
China, V, 566. 

ASYLUM. 147 

the nature of repairs affecting the preservation of the 
vessels. ' 

An incident of the early stages of the conflict suggests 
the need of an amplification of the rule by which a bellig- 
erent man-of-war is required, except in case of stress of 
weather or of need of provisions or repairs, to leave a 
neutral port within twenty-four hours after her arrival. 
On May 11, 1898, Captain Cotton, of the auxiliary cruiser 
Harvard, cabled from St. Pierre, Martinique, to the Sec- 
retary of the Navy that the Spanish torpedo-boat destroyer 
Furor had touched during the afternoon at Fort de France, 
Martinique, and had afterwards left, destination unknown, 
and that the governor had ordered him not to sail within 
twenty-four hours from the time of the Furorh departure. 
At noon on the l£th of May Captain Cotton was informed 
by the captain of the port, at St. Pierre, that the Furor 
had about 8 a. m. again called at Fort de France and would 
leave about noon, and that he might go to sea at 8 p. m.; 
but that, if he did not do so, he would be required to give 
the governor twenty-+'our hours' notice of his intention to 
leave the port. On the same day Captain Cotton received 
information which led him to telegraph to the Secretary of 
the Navy that he was closely observed and blockaded at 
St. Pierre by the Spanish fleet, and that the Spanish tor- 
pedo-boat destroyer Terror was at Fort de France. Later, 
Captain Cotton cabled that the Spanish consul protested 
against his stay at St. Pierre, and that he had requested 
permission to remain a week to make necessary repairs to 
machinery. Replying to these reports, the Secretary of 
the Navy telegraphed to Captain Cotton ns follows: "Vig- 
orously protest against being forced out of the port in the 
face of superior blockading force, especially as } r ou were 
detained previously in the port by the French authorities 
because Spanish men-of-war had sailed from another port. 
Also state that United States Government will bring the 
matter to the attention of the French Government. Urge 
United States consul to protest vigorously." It proved to 
be unnecessary to take further action. Captain Cotton's 
request for time was granted. The governor showed no 

1 Mr. Day, Sec. of State, to Mr. Hay, Ambassador at London, Aug. 22, 
1898; Mr. Hay to Mr. Day, Aug. 23, 1898: For. Rel., 1898, 1002. 


disposition to force him out of port, only requiring twenty - 
four hours' notice of an intention to sail; and the danger- 
to which the Harvard seemed to be exposed soon disap- 
peared. 1 It may be observed, however, that as the enforce- 
ment, under circumstances such as were described, of the 
twenty-four hours' limit, would constitute a negation of 
the admitted privilege of asylum, it is not likely that it 
would be held to be applicable in such a situation. 

The Spanish torpedo-boat destroyer Temerario, which 
was reported to have been sent down the coast of South 
America to intercept the U. S. S. Oregon on her way 
around Cape Horn to Cuba, was permitted by the Para- 
guayan Government to lie up during the war at Asuncion, 
in a condition of disability unfitting her for service. 

A number of the neutrality proclamations contained a 
clause limiting the supply of coal which a belligerent ves- 
sel might obtain to a quantity sufficient to take such vessel 
to the nearest port of its own country, or, in other words, 
to its nearest national port. In the decree of the Nether- 
lands, the provision read that " the store of coal shall only 
be supplemented sufficiently to allow the ship or vessel to 
reach the nearest port of the country to which it belongs, 
or that of one of its allies in the war." When the Spanish 
fleet, which was afterwards destroyed at Santiago, arrived 
off Curacao on the 14th of May, 1898, the commander 
sought from the Dutch colonial authorities permission to 
await there 5,000 tons of coal which had been sent thither. 
This request was denied, as well as a request for permission 
to ship the coal whenever it should arrive. A request that 
each vessel be allowed to take 700 tons was likewise re- 
fused. Finally, permission was asked and granted for two 
of the vessels, the Maria Teresa and the Yhcaija, to enter 
the harbor and each to take 200 tons, the rest of the ship> 
meanwhile to remain at anchor in the roads. The 400 tons 
thus obtained were said to be of "very poor quality." 2 

1 Naval Operations of the War with Spain, 383-389 ,407-410. 

2 Mr. Newel, minister at The Ha<me, to the Sec. of State, May 20, 
1898, MSS. Dept. of State; Mr. Moore, Assistant Sec. of State, to the 

. of the Navy, June 2, 1898, 229 .MS. Doin. Let., 93; Mr. Smith, 
consul at Curacao, May 16 and May 18, 1898, MSS. Dept. of State. 
There was at one time a rumor, which proved to be erroneous, that 

COAL. 149 

When, in the latter part of Ma}', 1898, it was rumored 
that the Spanish armored squadron had sailed or was about 
to sail to the United States and might stop at the Azores 
for coal, the minister of the United States at Lisbon was 
instructed to protest against its coaling at those islands, on 
the ground that, as they lay entirely outside the route from 
Spain to the Spanish West Indies, such an act would convert 
the Portuguese territory into a base of hostile operations 
against the United States. 1 The squadron did not in fact 
sail westward, but afterwards proceeded on the way to the 
East as far as the Suez Canal and then returned to Spain. 

Before the outbreak of hostilities, the Pacific Mail Steam- 
ship Company was permitted, under its agreement with 
the Mexican Government, to furnish supplies of coal to 
United States men-of-war at Acapulco. During the war, 
the Mexican Government placed limitations on the supply 
of coal to belligerent vessels in its ports, and made no 
exception as to United States vessels at Acapulco. The 
Department of State abstained from addressing any repre- 
sentation to Mexico on the subject, on the ground that as 
it had "on numerous recent occasions asked of Mexico the 
strict execution of its neutral duties," it was b< not disposed, 
upon the strength of an agreement between the Pacific 
Mail Steamship Company and the Mexican Government, 
made before the war, to insist that public ships of the 
United States may now be allowed to take coal without 
limit in a Mexican port." 2 

By an act of Congress of April 22, 1898, the President 
was "authorized, in his discretion and with such limita- 
tions and exceptions as shall seem to him expedient, to 
prohibit the export of coal or other material used in war 

the Maria Teresa and the Vizcaya each obtained at Curacao 600 tons 
of coal, which was far more than enough to take them to Porto Rico, 
the nearest Spanish possession, or to Cuba. By such a transaction 
Curacao would have been "converted into a base of hostile operations 
for Spanish vessels in violation of neutrality." (Mr. Day, Sec. of 
State, to Mr. Newel, tel., May 17, 1898, MS. Inst, to the Netherlands, 
XVI, 357.) 

l Mr. Day, Sec. of State, to Mr. Townsend, tel., May 20, 1898, MS. 
Inst. Portugal, XVI, 146. 

2 Mr. Day, Sec. of State, to the Sec. of the Navy, Aug. 5, 1898, 230 
MS. Dom. Let., 541. 


from any seaport of the United States until otherwise 
ordered" by himself or by Congress. For the purpose of 
enforcing the provisions of this act, as well as of regula- 
ting the subject of exportations generally during the con- 
tinuance of the war, a circular was issued by the Treasury 
Department, April 27, 1898. Under the regulations and 
practice of that Department, the interested persons were 
required to apply to the proper collector of customs for 
pel-mission to clear the coal, stating who were the shippers 
and who the consignees. They were also required to make 
affidavit that the coal was not destined directly or indi- 
rectly for the enemies of the United States, and to agree 
to advise the Treasury Department by telegraph of the 
arrival of the coal at its destination immediately upon such 
arrival. The Treasury Department reserved the right to 
require the shipper to give bond for the transportation of 
the coal to the port for which clearance was asked, and 
from this bond he was not released till the cargo had 
arrived at that port or had been satisfactorily accounted 
for. This requirement was designed to prevent collusive 
captures, and was not as a rule exacted where the collector 
recommended the clearance and the standing of all the par- 
ties concerned was such as to convince the Treasury that 
the additional safeguard might be dispensed with. In this 
and in other particulars the action of the Treasury was 
largely governed by the circumstances of the case. 1 The 
restrictions on exportation naturally resulted in a real or 
apprehended scarcity of coal at places which depended on 
the United States, in whole or in part, for their supply. 
At Vera Cruz, for example, where there is a considerable 
demand for the article for railways, double freight rates 
were offered for cargoes in the latter part of May. 2 


April 22, 1898, the Department of State, in a telegraphic 
instruction to the diplomatic represensatives of the United 
States, declared among other things that, in the event of 

. 1 Mr. Day, Sec. of State, to Mr. Andrade, June 6, 1898, MS. Notes 
to Venez. Leg., II, 22. 

2 Mr. Moore, Assist. Sec. of State, to the Treasury Dept., May 25, 
1898, 227 MS. Dom. Let., 641. 


hostilities with Spain, the "policy" of the United States 
"will be not to resort to privateering." The Spanish 
Government, by a royal decree of April 23, 1898, embody- 
ing the rules which it proposed to observe during the war, 
reserved the right to issue letters of marque. Of this res- 
ervation Spain afterwards took no advantage. The decree 
also declared that the Government would, for the purposes 
of cruising, organize a service of "auxiliaiy cruisers of 
the navy," composed of "ships of the Spanish mercantile 
navy" and " subject to the statutes and jurisdiction of the 

The United States organized an auxiliary force, under 
the command of officers of the Navy. The conditions 
under which this service was established are set forth 
in the case of The Rita, 1 relating to the distribution of 
prize money among the officers and crew of the auxiliary 
cruiser Yale, formerly the steamer City of Paris of the 
International Navigation Company, commonly called the 
American Line. 

The City of Paris was one of a class of steamers which 
were, under the provisions of the mail-subsidy act of 
March 3, 1891, subject to be taken by the United States 
as cruisers or transports upon the payment of their actual 
value. By a charter party and supplemental agreement 
entered into April 30, 1898, between the company and the 
Secretary of the Navy, possession of the ship was trans- 
ferred to the Government, by which she was heavily 
armed and converted into an auxiliary cruiser. The char- 
ter party provided that the ship should be "manned, 
victualled, and supplied at the expense of the charterer." 
The charterer was also to pay all other expenses, and at 
the termination of the charter, which was to be at the 
charterer's will, was to return the ship in good repair, less 
ordinaiy wear and tear. The supplementary agreement 
provided that the ship was "to be manned by her regular 
officers and crew, and in addition thereto was to take on 
board two naval officers, a marine officer, and a guard of 
thirty marines, and was to be victualled and supplied with 
two months' provisions and about four thousand tons of 

1 89 Fed. Rep., 763. 


coal, the actual cost to the owner of such additional equip- 
ment and services to be reimbursed by the charterer upon 
bills to be certified by the senior naval officer on board." 
There were also stipulations protecting the owner against 
all expenses and liability, and a provision that during the 
continuation of the supplementary agreement the steam- 
ship was to be "under the entire control of the senior 
naval officer on board." Under these agreements the Gov- 
ernment of the United States placed on board the ship a 
captain and a lieutenant of the Nav} r and a marine guard 
of 25 enlisted men. There were also on board 269 other 
persons, not commissioned by or regularly enlisted in the 
service of the United States, but comprising the ship's 
company, both officers and men, who were doing duty on 
board and were borne on the books of the ship. On a 
question that arose as to the distribution of prize money it 
was held that the Yale was neither a " vessel of the Navy " 
nor a privateer, but came within the statutory class of 
vessels "not of the Navy, but controlled by either Execu- 
tive Department," and was, as an k * armed vessel in the serv- 
ice of the United States," "entitled," in the words of the 
statute, " to an award of prize money in the same manner 
as if such vessel belonged to the Navy." 1 

In the telegram of April 22, above cited, the Govern- 
ment of the United States, besides announcing its policy 
in regard to privateering, stated that it would adhere to 
the second, third, and fourth rules of the Declaration of 
Paris, as " recognized rules of international law." 

On April 26, the President issued a proclamation more 
f ulh T denning the position of the Government on questions 
of maritime law. By this proclamation the announcement 
that it would not be the policy of the United States to 
resort to privateering was repeated; and following this 
announcement, six rules were promulgated for the observ- 
ance of officers of the United States during the conflict. 

1 See, as to the "volunteer navy" organized by Prussia during the 
Franco-German war, Hall, Int. Law, 4th ed., 547-550. 

By the act of March 3, 1899, for the reorganization of the U. S. Navy 
and Marine Corps, all provisions of law authorizing the distribution 
among captors of prize money or providing for the payment of bounty 
are repealed. (30 U. S. Statutes at Large, 1004, 1007.) 


These rules, the first three of which embodied the sub- 
stance of the second, third, and fourth rules of the Declara- 
tion of Paris, were as follows: 

"1. The neutral flag covers enemy's goods, with the 
exception of contraband of war. 

" 2. Neutral goods, not contraband of war, are not liable 
to confiscation under the enemy's flag. 

"3. Blockades in order to be binding must be effective. 

"4. Spanish merchant vessels, in any ports or places 
within the United States, shall be allowed till May 21, 
1898, inclusive, for loading their cargoes and departing 
from such ports or places; and such Spanish merchant 
vessels, if met at sea by any United States ship, shall be 
permitted to continue their A'oyage, if, on examination of 
their papers, it shall appear that their cargoes were taken 
on board before the expiration of the above term: Pro- 
vided, that nothing herein contained shall apply to Spanish 
vessels having on board any officer in the military or naval 
service of the enem}, or any coal (except such as may be 
necessary for their voyage), or any other article prohibited 
or contraband of war, or any despatch of or to the Spanish 

"5. Any Spanish merchant vessel which, prior to April 
21, 1898, shall have sailed from an} T foreign port bound 
for any port or place in the United States, shall be per- 
mitted to enter such port or place, and to discharge her 
cargo, and afterwards forthwith to depart without molesta- 
tion; and any such vessel, if met at sea by any United 
States ship, shall be permitted to continue her voyage to 
any port not blockaded. 

"The right of search is to be exercised with strict 
regard for the rights of neutrals, and the voyages of mail 
steamers are not to be interfered with except on the 
clearest grounds of suspicion of a violation of law in 
respect of contraband or blockade.'' 

The rules to be observed by the Spanish Government 
were embodied in the royal decree of April 23, 1898. 
This decree allowed only five days from the date of its 
publication for the departure of American ships from 
Spanish ports. It did not in terms prohibit the capture 
of such ships after their departure, nor did it provide for 


the entrance and discharge of American ships sailing for 
Spanish ports before the war. 

As no captures were made by Spain, no opportunity 
occurred for the judicial construction of the rules which 
that Government announced for its guidance. In respect 
of some of the captures made by the United States, there 
arose interesting questions which became the subject of 
judicial decision. 1 



In the case of the Buena Ventura an important applica- 
tion was made of rule 4 of the proclamation of April 26. 
The B>i< mi Ventura was a Spanish merchant steamship, 
which was captured by the United States steamship Nash- 
ville, eight or nine miles off the Florida coast. On the 
27th of May she was condemned by the United States 
district court for the southern district of Florida as enemy 
property. 2 This sentence was reversed by the Supreme 
Court of the United States. 3 It appeared that the Bum a 
Ventura was, at the time of her capture, on a vo} T age from 
Ship Island, in the State of Mississippi, to Rotterdam, by 
way of Norfolk, Virginia, with a cargo of lumber. She 
arrived at Ship Island March 31, 1898, and sailed for Rot- 
terdam on April 19, with a permit, obtained in accordance 
with the laws of the United States, to call at Norfolk for 
a supply of bunker coal. She was captured on the morn- 
ing of April 22. She made no resistance, had on board 
no military or naval officer, and carried no arms or muni- 
tions of war. It was undisputed that when captured she 
was ou her way to Norfolk, and that her papers for that 
purpose were in due form. The opinion of the Supreme 
Court was delivered by Mr. Justice Peckham. The ques- 
tion at issue was whether she could be brought within the 
exemption of the fourth rule of the proclamation of April 

1 A list of all the prizes made by the United States naval forces on 
the North Atlantic stations may be found in the Naval Operations 
of the War with Spain, 316-325. 

2 Buena Ventura et al., 87 Fed. Rep., 927. The cargo, being the prop- 
erty of neutrals and not contraband of war, was restored. 

3 The Buena Ventura, 175 U. S., 384. 


26 as to "Spanish merchant vessels, in any ports or places 
within the United States." In the course of his opinion 
Mr. Justice Peckham observed that the vessel in question, 
as a merchant vessel of the enemy carrying on an inno- 
cent commercial enterprise at or just prior to the time 
when hostilities began, belonged to a class which the 
United States had always desired to treat with great lib- 
erality, and which civilized nations had in their later prac- 
tice in fact so treated. The President's proclamation 
should therefore receive u the most liberal and extensive 
interpretation" of which it was capable, and, where two 
or more interpretations were possible, the one most favor- 
able to the belligerent in favor of whom the proclamation 
was issued. The provision that "Spanish merchant ves- 
sels in any ports or places within the United States shall 
be allowed until May 21, 1898, inclusive, for loading their 
cargoes and departing," might, said the learned justice, be 
held to include (1) only vessels in port on the day when 
the proclamation was issued, namely, April 26, or (2) those 
in port on April 21, the day on which war was declared 
by Congress to have begun, or (3) not only those then in 
port, but also any that had sailed therefrom on or before 
May 21, whether before or after the commencement of 
the war or the issuing of the proclamation. The court 
adopted the last interpretation. While the proclamation 
did not in so many words include vessels which had sailed 
from the United States before the commencement of the 
war, such vessels were, said Mr. Justice Peckham, clearly 
within its " intention," under the liberal construction which 
the court felt bound to give it. In view of the fact, how- 
ever, that, at the time of the capture, the proclamation of 
April 26, without which the vessel would have been liable 
to condemnation, had not been issued, restitution was 
awarded without damages or costs. 1 

The effect of the fourth rule of the proclamation of April 
26 was again considered in the case of the Spanish steam- 
ship Panama. This vessel was condemned b} r the court of 
original jurisdiction as enemy property, 2 and the decree 

1 The Chief Justice and Justices Gray and McKenna dissented from 
the decision of the court. 

2 Buena Ventura et ah, 87 Fed. Rep., 927. 


was continued by the Supreme Court. 1 The Panama, a 
steamship of 1.482 tons register, owned by the Compania 
Transatlantics, a Spanish corporation of Barcelona, Spain, 
and carrying the Spanish flag, sailed from New York on 
April 20, 1898, for Havana. Cuba, and certain Mexican 
ports, with a general cargo and passengers and mails. 
April 25, when about twenty-live miles from Havana, she 
was captured by a United States man-of-war. The Puna nm 
had a commission as a royal mail ship from the Spanish 
Government and a crew of seventy -one men, who had 
been shipped at various times at Havana, and she carried 
twenty-nine passengers, all of whom, with the exception 
of one Frenchman, were Spaniards. Mr. Justice Gray, 
who delivered the opinion of the Supreme Court, said that 
the case of the Buena Ventura would be decisive of that of 
the Panama, but for the mails and the arms carried by the 
latter vessel and the contract under which she sailed. 
Under that contract, which was entered into in 1886, the 
Spanish Government had the right to take possession of 
the steamer in case of war; and it was required that the 
ships belonging to the line should be specially adapted to 
use in war, and that every mail steamer should cany a 
certain armament "for her own defense/' The officers 
and crew, and so far as possible the engineers, were to be 
Spaniards. When captured the Panama carried two 
breech-loading Hontoria guns of nine centimeter bore, one 
mounted on each side of the ship; one Maxim rapid-fire 
gun on the bridge; twenty Remington and ten Mauser 
rifles, with ammunition for all the guns and rifles; and thirty 
or forty cutlasses. The guns had been put on board three 
years before, and the small arms or ammunition a year or 
more; and all her armament was carried in compliance 
with the mail contract, except the Maxim gun and the 
Mauser rifles. It might be assumed, said the court, that 
the primary object of the steamer's armament, and in time of 
peace its only object, was that of defense. The armament, 
however, was not in itself inconsiderable, and after the 
capture of the vessel her arms and ammunition were 
delivered over for the use of the United States Navy. 

l The Panama, 176 U. S., 535. 


The ship was therefore enemy property, bound to an 
enemy port, carrying an armament susceptible of use for 
hostile purposes, and herself liable, on arriving in that 
port, to be appropriated by the enemy for such purposes. 
The intent of the proclamation, continued the court, was 
to exempt for a time from capture peaceful commercial 
vessels, and not to assist the enemy in obtaining weapons 
of war; and it could not be reasonably construed as exempt- 
ing from capture "a Spanish vessel owned by a subject of 
theenem} T ; having an armament fit for hostile use; intended, 
in the event of war, to be used as a war vessel; destined 
to a port of the enemy; and liable, on arriving there, to 
be taken possession of by the enemy and employed as an 
auxiliary cruiser in the enemy's navy." 


The proper application of the fifth rule of the proclama- 
tion of April 26 was considered by the Supreme Court in 
the case of the Spanish merchant steamer Pedro ^ which 
was condemned by the court below as enemy property. 2 
The Pedro, which was a British-built ship and for several 
years sailed under a British registry, was transferred . in 
1887 to a Spanish corporation of Bilbao, Spain, and was 
duh T registered as a Spanish vessel. Thereafter she sailed 
under the Spanish flag and was officered and manned by 
Spaniards, though she was employed for the transportation 
of merchandise for hire under the management of a Liver- 
pool firm. Her usual course was to take cargo in Europe 
for Cuban ports and, after discharging there, to proceed 
to the United States and obtain cargo for Europe, the round 
trip occupying about three months. On March 18, 1898, 
while she was loading in Antwerp for Cuba, she was char- 
tered by an American firm to proceed to Pensacola, Florida, 
or Ship Island, Mississippi, for a cargo of lumber for Rot- 
terdam or Antwerp. Soon afterwards she left Antwerp 
with about two thousand tons of merchandise of various 

1 The Pedro, 175 U. S., 354. The case of the Guido, 175 U. S., 382, 
is similar, and was decided on the strength of that of the Pedro, with- 
out an extended opinion. 

2 Buena Ventura et al., 87 Fed. Rep., 927. 


kinds for Havana and Cienfuegos. She arrived at Havana 
on April 17 and. after discharging most of her cargo, sailed 
on the '2'2d for Santiago, Cuba, with a small quantity of 
general merchandise taken at Havana. On the same day 
she was captured a few miles off Havana by a cruiser of 
the United States blockading fleet. Her condemnation 
was resisted on the ground, among others, that her true 
destination was a port in the United States, so that she fell 
within the exemption contained in rule rive. The court, 
Chief Justice Fuller delivering the opinion, declined so to 
hold. The Chief Justice observed that the Pedro remained 
at Havana from the 17th of April to the 22d, and left on 
the latter day, which was the day after the war began; 
that she then had no cargo for any port in the United 
States, but only for Santiago and Cienfuegos, in Cuba. 
She had not left a foreign port in ignorance of the "peril- 
ous condition of affairs," but must be assumed to have been 
advised of the iniminency of hostilities; nor was she bring- 
ing a cargo to the United States for the increase of its 
resources and the convenience of its citizens. On the con- 
trary, she was captured while trading from one enemy 
port to another, being herself an enemy vessel. Under 
these circumstances, the fact that she was under contract 
ultimately to proceed to a port of the United States to take 
cargo for Europe did not, said the Chief Justice, bring her 
within the exemption of the rifth rule; and he declared 
that the doctrine of continuous voyages, as laid down by 
the court on various occasions, did not apply to the case. 1 
The decree of condemnation was therefore affirmed.. 

Mr. Justice White delivered a strong dissenting opin- 
ion, in which Justices Brewer, Shiras, and Peckham con- 
curred. In this opinion it was argued that the principal 
voyage of the vessel was from Antwerp to the United 
States, the calling at Cuban ports being merely incidental, 
that, although Congress afterwards declared that war 
should be considered as having existed on and after April 
21, it was neither conceived nor known, when she left 

1 The Chief Justice discussed and distinguished the following cases: 
The Circassian, '2 Wall., 135; the Bermuda, 3 Wall., 514; the Spring- 
bok, 5 Wall., 1; the Joseph, 8 Cranch, 251; the A rgo, Spinks's Prize 
Oases, 53. 


Havana on the 22d. that a state of war existed; that, just 
before her departure from Havana, 0m 4 American ship 
was allowed to sail from that port. and. shortly after her 
departure, another; and that the reference to the fact that 
the Pedro had no cargo for the United States ignored the 
enlightened moral purpose of the proclamation, and par- 
ticularly the provisions of the fourth rule, which allowed 
enemy ships not only to depart from the United States 
hut also to load and take away cargo either for a neutral 
port or for a port of the enemy not blockaded. 1 


In three well-considered eases, two of which related to 
vessels and the third to cargo, the question was raised as 
to whether the captured property, whose condemnation 
was demanded as enemy property, legally bore that char- 
acter. The first case was that of the Pedrof to which I have 
already adverted. After the preparatory proofs were 
taken, the master appearing on behalf of the owners made a 
claim to the vessel and moved for leave to take further 
proof on the ground that although a majority of tin 1 stock 
of the Spanish corporation, to which the vessel ostensibly 
belonged, was registered in the names of Spanish subjects 
and only a minority in the names of British subjects, one 
of the latter had possession of all the certificates of stock, 
in consequence of which he was. under the charter of the 
company, the sole beneficial owner of the steamer; that 
the transfer from British to Spanish registry was made 
solelv with a view to facilitate her engaging 1 in commerce 
with the Spanish colonies; that it was the intention of the 
British stockholders to restore her to the British registry 
and flag whenever the trade might be disturbed; and that 

l Mr. Justice White also contended that the decision of the Argo, 
Spinks's Prize Cases, 53, was a decision in consimili cam, and should 
be treated as an authority for the restoration of the Pedro. 

A Spanish vessel which sailed from England April 9, 1898, touched 
at Corunna, Spain, April 16, and then sailed for ports in Porto Rico. 
did not come within the proclamation of April 2H, hut was, after the 
outbreak of war, subject to capture as enemy property. (The Rita, 87 
Fed. Rep. 925: S. P., the Maria Dolores, ** Fed. Hep. 548. 

2 175 r. S. 354; supra, p. 157. 

6482—01 — 11 


the steamer was insured by British underwriters, by whom, 

if she should be condemned, the loss would be borne. 
The court below refused to allow further proof to be 
taken, and this ruling was affirmed by the Supreme Court. 
The vessel, said the Supreme Court, belonged to a Spanish 
corporation, had a Spanish registry, was sailing under the 
Spanish flag and a Spanish license, and was officered and 
manned by Spaniards. Nothing was better settled than 
that she must, under such circumstances, he deemed a 
Spanish ship and treated accordingly.' When the stock- 
holders elected to take the benefit of the Spanish naviga- 
tion laws, they must be held also to have elected to rely 
on the protection of the Spanish Hag. The alleged inten- 
tion to restore 1 the vessel to British registry, if war should 
render the change desirable, could not be regarded, since 
it had not been carried into effect when she was captured. 
The Spanish ownership having been made out. the facts 
that the stock of the corporation belonged legally or equi- 
tably to British subjects, and that the loss would eventually 
be borne by British underwriters were, said the court in 
conclusion, immaterial. 

In the case of the Benito Estenger* a question was raised 
as to the validity of the transfer of a vessel from a Span- 
ish subject to a neutral during the war. The Benito 
Estengt r was captured by the United States steamship 
Hornet June 27. L898, off Cape Cruz, on the south side of 
the island of Cuba. December T. L898, she was condemned 
by the United States district court for the southern dis- 
trict of Florida as enemy property. The claimant ap- 
pealed on the ground (1) that she was a British merchant 
ship, duly documented and entitled to the protection of 
the British flag, and lawfully owned and registered by 
a British subject domiciled in Great Britain, and (2) 
that she was engaged in a voyage in behalf of the local 
Cuban Junta in Kingston. .Jamaica, allies of the United 
States, and was thus captured in the service of the 
United States, in the performance of friendly offices to 
the United States forces. 

1 Story, Prize Courts (Pratt's ed.) 60, 66; the Friendschaft, 4 
Wheat. 105; the Ariadne, 2 Wheat. 143; the Cheshire, 3 Wall. 231; 
Hall, Int. Law, §169. 

* 176 C. S., 568. 


It appeared that prior to June 9, 1898, the vessel was 
the property of Enrique de Messa, a Spanish subject resi- 
dent in Cuba, and that on that day a bill of sale was made 
by de Messa to the claimant, Beattie, a British subject, 
and the vessel registered as a British vessel, at Kingston, 
in accordance with the requirements of British law. She 
had been engaged in trade with the island of Cuba, and 
more particularly between the ports of Kingston and 
Montego. Jamaica, and the port of Manzanillo, Cuba. 
She left Kingston June 23, and proceeded with a cargo of 
flour, rice, corn meal, and coffee to Manzanillo, where the 
cargo was discharged. She cleared from Manzanillo on 
June 27 for Montego. and thence for Kingston, and was 
captured on the same da}' off Cape Cruz. 

The opinion of the court, which was delivered by Chief 
Justice Fuller, contains various observations on the enemy 
character, illegal intercourse with the enemy, blockade, 
and other matters; but it niay be said that the only real 
questions in the case were (1) whether de Messa, though a 
Spanish subject, was to be treated as an enemy, and (2) 
whether the transfer of the ship from him to Beattie was 
an actual transfer made in good faith. 

As to the first point, there was, said the court, tw evidence 
tending to show that Messa sympathized with the Cuban 
insurgents, but no proof that he was himself a Cuban rebel 
or that he had renounced his allegiance to Spain." The 
cargo of the vessel when captured consisted chiefly of flour, 
and there was evidence to show that this flour, when landed 
at Manzanillo, was immediately transferred to the Spanish 
Government warehouse. The court referred to Manza- 
nillo as a '"Spanish stronghold," and observed that the 
delivery of the provisions to the Spanish Government con- 
stituted, under the laws of war, illicit intercourse with 
the enemy. It was alleged, however, that de Messa had 
rendered important service to the United States, that he 
was the friend and not the enemy of the United States, 
and that there was an agreement between him and the 
United States consul which operated to protect the vessel 
from capture. It appeared that de Messa had endeavored 
to cultivate friendly relations with the United States con- 
sul at Kingston and had given him an old Government 


plan of the province of Santiago and an especially pre- 
pared chart of the harbor, in return for which he endeav- 
ored to obtain from the consul a letter of protection for 
the voyage which he was about to undertake. The consul 
declined to furnish the letter, but on June '2?> wrote to 
Admiral Sampson that de Messa offered to give certain 
information that might be valuable and proposed to be otl 
Cape Cruz on June 30, adding: "You quite understand 
that in. dealing with those people, one is more or less liable 
to imposition. I therefore make no recommendation of 
Messa to you/* 'The claimant asserted, while the consul 
denied, that protection was given to the voyage by this 
letter. With reference to this contention, the court said 
that there was nothing to show that the voyage was under- 
taken on the strength of the letter, or that it in any way 
contributed to the capture; nor that the admiral intended 
to avail himself of the suggestion made in it; " but," said 
the court, "we do not go at length into this matter. 
because we think that no engagement with the United 
States nor any particular service to the United States was 
made out in that connection, and so far as appears the ves- 
sel was captured in the ordinary course of cruising duty 
at a time and under circumstances when her liability was 
not to be denied. Moreover, a United States consul has 
no authoritv bv virtue of his official station to grant any 
license or permit the exemption of a vessel of an enemy 
from capture and confiscation." 1 Referring to the same 
subject in another place, the court said: " Messa's status 
was that of an enemy, as already stated, and this must be 
held to be so notwithstanding individual acts of friend- 
ship, certainly since there was no open adherence to the 
Cuban cause, and allegiance could have been shifted with 
the accidents of war." 

As to the question of the validity of the sale, the court said 
that de Messa's story of the transfer was that he was com- 
pelled to sell the steamer in order to get money to live on, 
and that he made the sale for $40,000, for the whole or a 

'The court cited and discussed Rogers v. The Amado, Newberry, 
400; The Hope, 1 Dodson, 226,229; The Joseph, 8 Cranch, 451; Les 
CvnqFreres,4 Lebau's Nouveau ('<»<!(• de Prises, 63; The Maria,6C 
Rob., 201. 


large part of which credit was given on an indebtedness to 
the firm of which Beattie was a member, and that he was 
employed by Beattie to go on the vessel as his representa- 
tive and business manager. Beattie in his testimony said 
that the sale was bona fide, but declined to state of what 
the payment of the purchase money consisted. The consul 
of the United States at Kingston testified that Beattie in 
conversation, while insisting that the transfer was abso- 
lute, admitted that it was effected for the purpose of pro- 
tecting the vessel. Apparently no money passed. The 
Spanish master and crew remained in charge. De Mess'B 
went on the voyage as supercargo; and in the brief of the 
claimant's counsel it was declared that the transfer was 
obviously made to protect the steamer as neutral property 
from Spanish seizure, while it was admitted that de Messa 
"still retained a beneficial interest after this sale and trans- 
fer of flags." On this statement of facts the court observed 
that "transfers of vessels flagrante hello were originally 
held invalid," but that the rule had been " modified. " The 
court quoted from Hall's International Law, 4th edition, 
page ?rl^, as containing the correct rule of law. the follow- 
ing passage: "In PCngland and the United States, on the 
contrary, the right to purchase vessels is in principle 
admitted, they being in themselves legitimate objects of 
trade as fully as any other kind of merchandise, but the 
opportunities of fraud being great, the circumstances 
attending a sale are severely scrutinized, and the transfer 
is not held to be good if it is subjected to any condition or 
even tacit understanding by which the vendor keeps an 
interest in the vessel or its profits, a control over it. a 
power of revocation, or a right to its restoration at the 
conclusion of the war." ' The burden of proof, said the 
court, was on the claimant. In conclusion, the court held 
that the requirements of the law of prize were not satisfied 

1 The court also cited Story's Notes on the Principles and Practice of 
Prize Courts (Pratt's ed.), 63; 2 Wheat. App., 30; The Seeks Gesch- 
uMern, 4 C. Rob., 100; The Jemmy, 4 ('. Rob., 31; The Omnibus, 6 C. 
Rob., 71; The Island Belle, 13 Fed. Cases. L68; The Baltica, Sj .inks' s 
Prize Cases, 264; The Soglasie, Spinks's Prize Cases, 104; The Ernst 
Merck, Spinks's Prize Cases, 98. 


by the proofs in question, and that the condemnation was 

proper. 1 

In the case of the Carlos F. Roses, 2 in which the con- 
demnation of the cargo was demanded as enemy property. 
a question was raised as to the effect of the indorsement 
of the bills of Lading to neutrals. The vessel itself, a 
Spanish bark, was condemned as enemy property. The 
cargo was claimed by Kleinwort Sons & Co.. British mer- 
chants, of London. It consisted of jerked beef and garlic, 
and was shipped at Montevideo in March, L898, by Giber- 
nau c<: Co., merchants of that place but citizens of the 
Argentine Republic. The invoices stated that the goods 
were shipped " to order for account and risk and by order 
of the parties noted below." In the invoice of jerked beef 
the consignees noted below were "the expedition or voy- 
age of the Carlos F. Roses" and "Mr. Pedro Pag^S of 
Havana." all concerned being Spanish subjects; the con- 
signees of the garlic were " Mr. Pedro Pages" and "the 
undersigned." Gibernau & Co. There were three sets of 
bills of lading issued by the master to Gibernau & Co. 
one for that part of the shipment of jerked beef made for 
account of the vessel, another for that part made for ac- 
count of Pages, and the third for the shipment of garlic 
for the joint account of Pages and Gibernau & Co. All 
the bills set forth that the goods were taken for the account 
and at the risk of whom it might concern. In the ship's 
manifest the destination of the cargo was stated thus: 
" Shipped by Pla Gibernau Co. To order." The vise of 
the Spanish consul read: " Good for Havana, with a cargo 
of jerked beef and garlic." There was no charter party. 
On the face of the papers the court held that the goods, 
when delivered to the vessel, became the property of the 
consignees named in the invoices, and that, as Gibernau & 
Co. had not appeared and claimed any interest, the whole 
cargo, which the claimants in fact admitted to be "ulti- 
mately destined for Don Pedro Pages of Havana." must 

•Justices Sliiras. White, and IVckliam dissented. The President 
did "not find himself justified in exercising clemency V in this case. 
Mr. Hill, Acting Sec. of State, to the Attorney-General, Feb. L3, 1901, 
250 MS. Dom. Let.. 651.) 

- 177 (J. S.. 655. 


be condemned as enemy property unless cause to the con- 
trary was shown. Such cause Kleinwort & Co. endeavored 
to establish, on the ground that after the shipment of the 
cargo they made advances upon it to the amount of about 
$30,000, in consideration of which the bills of lading, 
indorsed in blank by Gibernau & Co., were delivered to 
them with the intent that they should take title to the bills 
and the cargo, and on the 1 arrival of the latter at its desti- 
nation hold it as security, with the right to dispose of it 
and reimburse themselves with the proceeds. They con- 
tended that in this way they became the lawful owners 
both of the bills and of the cargo. It appeared, however, 
that in neither of the two bills of exchange, which were 
drawn on Kleinwort & Co. for the amount of the advances, 
was any reference made to the cargo, and that while two 
of the bills of lading were alleged to have been delivered 
to the firm at the time of its acceptance of the bills of ex- 
change, the third, for the greater part of the jerked beef, 
was not delivered till long afterwards. On these and other 
circumstances the court held that the cargo never dona 
fide passed to Kleinwort & Co., but remained the prop- 
erty of Spanish subjects, and was liable to condemnation. 1 
It should be noticed that safe conducts were given by the 
President to the Alicante^ and other Spanish steamships, 
while proceeding under contract with the Government of 
the United States to Santiago de Cuba, and sailing there- 
from to Spain, with Spanish prisoners of war surrendered 
to the United States army in Cuba. 


But, from the point of view of the development of law. 
the most important opinion delivered by the Supreme 
Court on the question of the liability of enemy property 
to condemnation was that in the case of the Spanish fishing 
smacks, the Paquete Hahana and the Lola? The particu- 
lar point decided was that "coast-fishing vessels, with 
their implements and supplies, cargoes and crews, unarmed 

1 Mr. Justice Shiras delivered a dissenting opinion, in which Mr. 

Justice Brewer concurred. 

-The Paquete //<i/><tn<t, 175 U. S., <>77. 


and honestly pursuing their peaceful calling of catching 
and bringing in fresh fish, are exempt from capture a> 
prize of war." In reaching this conclusion, however, the 
court, through Mr. Justice Gray, who delivered the opinion. 
announced and applied a principle which, though often 
recognized by publicists, has perhaps never before been 
so clearly and precisely enunciated by a judicial tribunal — 
that is, the principle of the progressive development of 
international law. Referring to a decision of Lord Stow - 
ell. in which it was said that the exemption of vessels, 
such as those in question, was "a rule of comity only, and 
not of Legal decision.'" Mr. Justice Gray said: 

"The word •comity' was apparently used by Lord 
Stowell as synonvmous with courtesy or o-ood will. But 
the period of a hundred years which has since elapsed is 
amply sufficient to have enabled what originally may have 
rested in custom or comity, courtesy or concession, to 
grow, by the general assent of civilized nations, into a 
settled rule of international law. As well said by Sir 
James Mackintosh: 'In the present century a slow and 
silent but very substantial mitigation has taken place in 
the practice 4 of war: and in proportion as that mitigated 
practice has received the sanction of time, it is raised from 
the rank of mere usage and becomes part of the law of 
nations.'— Discourse mi the Law of Nations, 38; 1 Miscel- 
laneous Works, 360." 

It may be hoped that this enlightened declaration will 
lead our courts to abandon the repetition of the unfortu- 
nate dicta in Brown /*. United States. 1 based upon the 
theory that it was the peculiar prerogative of a remote 
age to fix by its customs, however rude and barbarous 
they may have been, an immutable law. in comparison 
with which the customs of modern times are merely 
"comity" or "•courtesy." which may be discarded at will. 


The first hostile act of the United States, on the outbreak 
of the war. was the blockaderof the ports of the north coast 
of Cuba from Cardenas to Bahia Honda, inclusive, and of 

1 8 Crancl), 110. See, also, Political Science Quarterly, XVI (Sept.. 
1901 1,409. 


the port of Cienfuegos on the south coast. Subsequently. 
a governmental blockade was proclaimed of all ports on 
the south coast of the island from (ape Frances to Cape 
Cruz, inclusive, and of the port of San Juan. Porto Rico. 
Various blockades de facto were also maintained. The 
object of a blockade being to cut off all intercourse between 
the inhabitants of the blockaded place and the world out- 
side, it is a general rule that while a period is allowed 
usually of fifteen days— during which vessels may depart 
either in ballast, or with cargo bought and shipped before 
the commencement of the blockade, no cargo is permitted 
to be shipped after the blockade is instituted. In the first 
proclamation of blockade by the United States, which was 
issued April 2'2. a period of thirty days was allowed for 
the departure of neutral vessels from the blockaded ports, 
but nothing was said as to the cargo. The natural infer- 
ence would therefore have been that no cargo could be 
taken on board after the blockade was instituted. But in 
applying the proclamation to the cases that arose under it, 
the United States construed it as permitting the taking of 
cargo during the thirty days, and when the next procla- 
mation was issued, the point was expressly covered by a 
clause in which it was stated that neutral vessels lying in 
any of the ports to which the blockade was then extended 
would be allowed "thirty days to issue therefrom with 
cargo." The same rules were applied in the case of the 
de facto blockades established by Admiral Dewey in the 
Philippines. 1 These and other features of the law of 
blockade were included in General Orders. No. 592, entitled 
"Instructions to blockading vessels and cruisers/* which 
were issued by the Navy Department, with the cooperation 
of the Department of State, on June 20, L898, for the 
information and guidance of the naval service. 

On several occasions vessels were, for special reasons 
and for special purposes, allowed to enter blockaded places. 
After the first proclamation of blockade, the French mail 
steamer Lafayette was permitted to enter the port of 
Havana for the purpose of landing mails and passengers. 
This concession was granted on the request of the French 

'Naval Operations of the War with Spain, 99. 


embassy, coupled with the representation that the vessel 
sailed from St. Nazaire, in Franco, for Havana before the 
proclamation was issued. A similar privilege was extended 
to the German steamer P6laria on the request of the 
German embassy, with tin 4 qualification that she should 
first obtain a formal permit from the V . S. naval com- 
mandant at Key West, that her entrance into Havana was 
for the sole purpose of landing her Hamburg passengers 
and mails, and that she should not land cargo of any kind, 
nor. with the exception of certain articles intended for the 
Emperor, take away any. 1 though permission was granted 
to bring away "any American or neutral passengers that 
may desire to depart in her. but no others." 

Early in the war special permission was given to certain 
neutral vessels to enter specified blockaded ports in Cuba 
in order to bring away Americans and any neutrals who 
might desire to leave. The United States consul at Kings- 
ton, Jamaica, was instructed to give certificates for the 
purpose of passing the blockade to the designated vessels. 2 

Permission was also granted, on the request of the proper 
diplomatic representatives, for the British steamer Myr- 
tledene and the Norwegian steamer F<>ls)<> to reenter the 
port of Cardenas, both vessels appearing to have left that 
port on notification of the institution of the blockade. In 
(Mich cast 4 it was stated that the steamer was not only noti- 
fied of the blockade, but was also ordered to go away. 
The allegation that the vessels were ordered away was 
afterwards denied in the case of at least one of them; but, 
without regard to this question, there seemed to be an ob- 
vious implication that when notice of the blockade was 
given they were not informed of the provision in the 
President's proclamation allowing to neutral vessels lying 

'.Mr. Day, Sec. of State, to Mr. vod Holleben, May Id and May 13, 
L898, MS. Notes to German Leg., XII. L32, 1:54; Mr. Moore, Assist. 
Sec. of State, to the Sec. of the Navy, May L3, 1898, 228 MS. Don,. 
Let., 460. In harmony with the conditions imposed in these cases 
permission was refused to neutrals to pass the blockade merely for the 
purpose of taking on hoard aad bringing away neutral property. 
I Mr. Day, Sec. of state, to Mr. von Holleben, Aug. 8, L898, MS. Notes 
to ( rerman Leg., X II, 177. ) 

-Mr. Moore, Acting Sec. of State, to Messrs. 1']. A. Atkius & Co., 
May :{ and May :>, L898, 228 MS. Dom. Let., 227, 269. 


in any of the blockaded ports thirty days' grace, and that, 
if they were not expressly ordered away, they at any rate 
construed the notice as an order to depart. The Folsjo 
had actually taken on board a part of her cargo, and in 
each case the cargo which was abandoned appeared to be 
the property of citizens of the United States. Under these 
circumstances instructions were given to allow the vessels 
in question to reenter the port and take on board, with all 
possible expedition, the cargoes of sugar which they had 
abandoned, it being understood that the permission was 
granted subject to the exigencies of any active military 
operations; that both vessels were strictly to observe the 
duties of neutrality, and particularly that neither of them 
was to carry more men or provisions than were necessary 
for the voyage. 1 Subsequently, on the representation of 
the minister of Sweden and Norway that the Folsjo, after 
lying for some days at Key West, had proceeded to New 
York, and that in consequence of the delay she was re- 
quired under a previous charter party to proceed to Eu- 
rope, the 'Norwegian steamer Tito was allowed to take her 
place, with the additional condition that before proceeding 
to Cardenas she was to call at Key West and obtain from 
the commandant of the United States Naval Station a for- 
mal letter of permission. 2 

An attempt was made near the close of hostilities to es- 
tablish a de facto blockade of the port of Sagua le Grande, 
on the north side of Cuba, but the attempt was abandoned 
under orders from Washington, and certain vessels which 
had been seized, ostensibly in connection with it. were re- 
leased. The French steamer ManovMa was supposed to 
fall within this category, but in reality she appears to have 
been seized, not for any breach of blockade, but on sus- 

l Mr. Day, Sec of State, to Mr. (.rip, May 11, 1898, MS. Notes to 
Swedish Leg., VIII, 88; Mr. Moore, Assist, See. of State, to the Sec. 
of the Navy, May 11, 1898, 228 MS. Dom. Let., 404. 

2 Mr. Day, See. of State, to Mr. Grip, May 13, 1898, MS. Notes to 
Swedish Leg., VIII, 89; Mr. Moore, Assist. See. of State, to the See. 
of the Navy, May 13, 1898, 228 MS. Dom. Let., 461. It seems that 
the Spanish authorities at Cardenas refused to allow the Myrtledene to 
reenter the port. (See Mr. Day, Sec. of State, to Sir .1. Pauncefote, 
May 20, 1898, MS. Notes to Br. Leg-. XXIV. 200. i 


picioD of "acting in the interest of the enemy." 1 August 
lo. L898, the Navy Department telegraphed that it was 
considered best for a few days not to extend the blockade 
beyond what had been proclaimed, and added: *• Beyond 

these limits be very careful not to seize vessels, unless 
Spanish or carrying contraband of war, as neutrals have a 
right to trade with ports not proclaimed blockaded." 2 

duly L5, L898, tin 1 Department of State addressed to all 
the foreign representatives in Washington a circular in 
relation to the entrance of neutral men-of-war into block- 
aded ports. In this circular it was stated that while then 1 
was no disposition on the part of the Government ,; to 
restrict the courteous permission heretofore accorded to 
neutral men-of-war to enter blockaded ports, it is advisa- 
ble that all risk of error or mischance should be avoided 
by due attention to the rules prescribed by prudence as 
well as by courtesy. To this end a neutral man-of-war 
desiring to enter or to depart from a blockaded port 
should communicate with the senior officer of the block- 
ading force." As to the port of Havana, it was said to 
be " advisable that neutral men-of-war * * * should. 
besides observing the above suggestions, approach the 
port from points between north by west and north by 
east and follow the same general course in departing," for 
the reason that, as the commanding officer was stationed 
north of Morro, *\such a course would enable vessels 
readily to communicate with him, and thus not only attend 

1 Commander C. H. Davis. [J. S. S. Dixie, July 26, 1898, Naval Opera- 
tions of the War with Spain, 280. See, also, as to the case of the Manoubia, 

note of French ambassador to the Secretary of State, Aug. 3, 1898, MS. 
Notes from French Leg.; Mr. Day, Sec. of State, to the Attorney-Gen- 
eral, Aug. 3, 1898, 280 MS. Dom. Let., 501; Mr. Hay. Sec. of State, to 
Sec. of the Navy, May 22, 1900, 24.") MS. Dom. Let.. 21 1. As to the 
British vessels K. R. Nickerson and Pilgrim, see Mr. Hay. Sec. of State, 
to the Attorney-General, Jan. 5, 1900. 2-12 MS. Dom. Let., 1:58. enclos- 
ing copy of anote of the British ambassador of Dec. 30, 1899; Mr. Hay, 
of State, to the Attorney-General, March 2, L899, 235 MS. Dom. 
Let., 287. As to the Mexican steamer Tabasqueno, see Mr. Day, Sec. of 
State, to the Attorney-General, Aug. 8, 1898, 280 MS. Pom. Let. 578; 
Mr. Day. Sec. of State, to Sec. of Navy, Aug. 8, L898, id. 581 ; Mr. Day, 
of State, to the Attorney-General, Aug. 11, 1898, id. 633. 
- Naval Operations of the War with Spain, 21)8; also, 259. 


to a matter of proper naval ceremonial, but also to avoid 
the danger of a neutral man-of-war being mistaken for an 
enemy in the dusk or in thick weather." 

The receipt of this circular was acknowledged by the 
different members of the diplomatic corps, and in no 
instance was objection then or subsequently made to its 
contents. On the contrary, the German Government pre- 
sented certain counter suggestions, of a more stringent 
nature, which were accepted by the United States as em- 
bodying an arrangement for the future. The rules thus 
agreed on were as follows: 

1. That the consent of the blockading Government, ob- 
tained through the usual diplomatic channels, should, un- 
less in a case of exceptional urgency, be a prerequisite to 
the entrance of a neutral man-of : war into a blockaded port. 

2. That approach to the blockaded port should be made 
in such manner that the senior officer of the blockading 
squadron would with certainty identify the neutral vessel, 
on her appearance in the blockaded belt, as the vessel of 
whose coming he had been notified. 

8. That, in exceptional cases, such as prevented the ob- 
taining of previous permission through the usual diplo- 
matic channels, the decision should rest with the senior 
officer present of the blockading squadron. 

4. That, in the 4 departure from a blockaded port, uo 
special formalities were requisite other than might be 
necessary to identity the departing neutral, such formali- 
ties to be agreed on by her commander and the officer in 
command of the blockade. 1 

Three cases involving the law of blockade were adjudi- 
cated by the Supreme Court. The first of those was the 
case of the French steamer Olinde Rodriguez? a steamer 
belonging to the Compagnie Generale Transatlantique. 
She sailed from Havre June 16, 1898, on her regular voy- 
age, under her mail contract with the French Government, 
for the West Indian ports of St. Thomas, San Juan (Porto 
Rico), Puerto Plata, Cape llaytian, St. Marque, Port au 
Prince, Gonaives, and return, calling at the same ports. 
The proclamation declaring San Juan blockaded was issued 

1 For. Rel., 1898, 1159-1169. -174 V. S. 510. 


June 27, L898. The OlincL Rodriguez arrived at St 
Thomas July 3, and on July 4 entered the port of San 

Juan. 'Flu 4 United States steamship Ybsemite, which was 
tying three miles southwest ward of the port, on blockade 
duty, gave chase, but was unable to reach the steamer be- 
fore she had turned in and come under the protection of 
the shore batteries. When on the following morning she 
came out. the commander of the Ybsemite^ accepting the 
master's statement that he did not know that the port was 
blockaded, endorsed on her log an official warning and 
permitted her to proceed. She duly completed her out- 
ward itinerary and had left Puerto Plata on her return 
voyage when, on July IT. she was captured by the United 
States steamship New OrleansoS. San Juan, on the charge 
of attempting to enter that port. Questions were raised 
(1) as to the existence of tin 1 intent to enter, and (2) as to 
the existence of a lawful blockade. The court below 
doubted the validity of the blockade, because it was main- 
tained by only one cruiser. 1 The Supreme Court ob- 
served that the test was whether the blockade was ••prac- 
tically effective;" that this, though a mixed question, was 
one "more of fact than of law;" that, by General Orders. 
No. VJ'2. "a blockade to he effective and binding must be 
maintained by a force sufficient to render ingress to or 
egress from the port dangerous;" that, while it was not 
practicable to define the degree of danger that should 
constitute a test, it was enough that the danger was "real 
and apparent;" and that the question of effectiveness was 
not controlled by the number of the blockading force. 
The position could not. said tin 4 court, be maintained, that 
one modern cruiser, though sufficient in fact, was not 
sufficient in law; nor could a vessel, actually captured in 
attempting to enter a blockaded port, after a warning 
entered on her log by a cruiser off that port only a few 
days before, dispute the efficiency of the force to which 
she was subjected. The blockade was therefore held to be 
effective and binding. On the other hand, the court decided 
that the intent to break the blockade was not sufficiently 
established; but, in view of circumstances of suspicion. 

1 Olinde Rodriguez, 89 Fed. Rep., in."): 91 Fed. Rep., 274. 


ordered that restitution should be awarded without dam- 
ages, and that the costs and expenses of her custody and 
preservation, and all costs in the cause except the fees of 
counsel, should be imposed on the ship. 

The British steamship Netvfoundland was seized off the 
coast of Cuba July ID. 1898, by a United States cruiser, 
on a charge of attempt to violate the blockade of Havana. 
After the preparatory testimony was taken, an order was 
made for further proof; 1 and on the subsequent hearing 
the vessel and cargo were condemned.'' This sentence 
the Supreme Court reversed. 3 The case was one chiefly 
of fact. It was alleged that the vessel was loitering with 
intent to seize an opportunity to run into Havana, that 
her usual lights were not displayed and that she was out 
of her proper course. These allegations were disputed; 
and the court was unwilling, upon the mere concurrence 
of a number of "suspicious circumstances," each one of 
which "standing alone" could be "explained." to hold that 
guilt was established. The court below, in discussing the 
proof of loitering, observed that it fell "very far short" 
of the inculpatory evidence in the cases of certain sailing- 
vessels, which the Government had cited as precedents for 
condemnation: but suggested that proof less full and pre- 
cise might be accepted in the case of steam vessels, o wing- 
to their superior power of movement. "Undoubtedly 
there is a difference," said the Supreme Court, " but if 
steam has increased the power of blockade runners, it has 
increased in greater degree, when conjoined with the range 
of modern ordnance, the power of blockade defenders. 
We recently had occasion to consider their power, and 
decided that a single modern cruiser might make a block- 
ade effective." 4 It was ordered that the vessel and cargo 
be restored, but without costs or damages. 

June 29, 1898, the steamer Adula, 372 tons, belonging 
to the Atlas Steamship Company, a British corporation, 
was captured by the United States steamship Marblehead, 
on the charge of an attempt to run the blockade established 

! 89 Fed. Rep., 99. 
89 Fed. Rep., 510. 

3 The Newfoundland, L76 U.S., 97. 

4 The court here cited the Olinde Rodriguez, 174 U. S., 510. 


at Guantanamo Bay, in Cuba- She was proceeding at the 
time under a charter, entered into on the preceding day 
at Kingston, Jamaica, to one Solis, a Spanish subject, at 
whose disposal she was placed for the conveyance of pas- 
sengers from the Cuban ports of Manzanillo, Santiago, 
and Guantanamo to Kingston. Accompanying the charter 
there was a letter of instructions to the master, signed 
by the agent of the company at Kingston, by which the 
master was advised that on his arrival at Guantanamo, 
whither he was to proceed direct, he would no doubt find 
American warships oft' the port: and he was directed, when 
signaled, to stop immediately and acquaint the command- 
ing officer with the voyage, in which case, said the instruc- 
tions, it was not thought that the officer would object to his 
continuing into port. The steamer was condemned. 1 and 
the sentence was affirmed by the Supreme Court. Mr. 
Justice Brown delivering the opinion. 2 

The questions involved were (1) the existence of a lawful 
blockade at Guantanamo. (2) the knowledge of the block- 
ade by those in charge of the vessel, and (3) their intent in 
making the voyage from Kingston. No blockade 1 of Guan- 
tanamo was ever proclaimed by the President, the place 
being east of the line established by the proclamation of 
June 27. But it appeared that blockades of Santiago and 
Guantanamo were in fact established by Admiral Sampson 
early in June, and were maintained till some days after the 
capture of the AdyLa; and. in view of the operations then 
being carried on for the purpose 1 of destroying or captur- 
ing the Spanish fleet and reducing Santiago, the court 
thought these blockades must be held to have been law- 
fully instituted, as an adjunct to such operations. It was 
contended, however, that, at the time of the capture, the 
port of Guantanamo was in the possession and control of 
the United States and that the blockade was thereby ter- 
minated. The town of Guantanamo is eighteen miles from 
the mouth of Guantanamo Bay. The harbor was held by 

1 Tin Adula, 89 Fed. Rep., 351. 

- The Adula, 176 U. S., 361. The President did "not find himself 

justified in exercising clemency'' in this case. (Mr. Hill, Acting Sec. 
of State, to the Attorney General, Feb. 13, 1901, 250 MS. Dom. Let., 


United States naval vessels and by a party of marines who 
occupied the crest of a hill on the west side of the harbor 
near its entrance, but the town at the head of the bay was 
still held by the Spanish forces, as were several other posi 
tions near by; and the campaign in the neighborhood was 
in active progress, and encounters between the American 
and Spanish troops were of frequent occurrence. Under 
these circumstances the court held that "the blockade was 
still operative as against vessels bound for the city of 
Guantanamo. The occupation of a city," continued the 
court, "terminates a blockade because, and only because, 
it supersedes it; and if a vessel be bound to a port or place 
beyond, which is still occupied by the enemy, the occupa- 
tion of the mouth of the harbor does not necessarily 
terminate the blockade as to such places. 1 

The blockade being lawful, the court found, upon the 
facts, that those in charge of the vessel had actual knowl- 
edge of its existence, and that their sailing for the port 
was therefore unjustifiable and properly subjected the 
vessel to condemnation. 


The question of contraband did not become the subject 
of judicial controversy during the war with Spain, but it 
was dealt with in General Orders No. 492. Premising its 
definition with the explanation that " contraband of war 
comprehends only articles having a belligerent destination 
as to an enemy's port or fleet," the order specified certain 
articles as "absolutely contraband" and others as "condi- 
tionally contraband." The former were: 

"Ordnance; machine guns and their appliances, and the 
parts thereof; armor plate, and whatever pertains to the 
offensive and defensive armament of naval vessels; arms 
and instruments of iron, steel, brass, or copper, or of any 
other material, such arms and instruments being specially 
adapted for use in war by land or sea; torpedoes and their 
appurtenances; cases for mines, of whatever material; 
engineering and transport materials, such as gun carriages, 
caissons, cartridge boxes, campaigning forges, canteens. 

1 The court cited, as decisive on this point, The Oircaman, 2 Wall. , 135. 
6482—01 12 


pontoons: ordnance .stores: portable range tinders; signal 
flags destined for naval use: ammunition and explosives of 
all kinds: machinery for the manufacture of arms and 
munitions of war; saltpeter: military accoutrements and 
equipments of all sorts: horses." 

The "conditionally contraband' 1 were: 

" Coal, when destined for a naval station, a port of call, 
or a ship or ships of the enemy: materials for the con- 
struction of railways or telegraphs, and money, when such 
materials or money are destined for the enemy's forces; 
provisions, when destined for an enemy's ship or ships, or 
for a place that is besieged." 

By the Spanish royal decree of April 23, 1898, contra- 
band was defined as follows: 

" Cannon, machine guns, mortars, guns, all kinds of arms 
and firearms, bullets, bombs, grenades, fuses, cartridge-, 
matches, powder, sulphur, saltpeter, dynamite and every 
kind of explosive; articles of equipment like uniforms, 
straps, saddles and artilleiy and cavalry harness; engines, 
for ships and their accessories, shafts, screws, boilers and 
other articles used in the construction, repair and arming 
of war-ships; and in general all warlike instruments, uten- 
sils, tools, and other articles, and whatever may hereafter 
be determined to be contraband." 

But for the last clause, which seemed to be capable of 
rendering the preceding specific enumeration nugatory, 
this paragraph would be open to little objection. Soon 
after its promulgation the operation of the decree was 
restricted, on the request of the Italian Government, by a 
special dispensation in favor of sulphur, which is obtained 
chiefly from Sicily. 


B} T the strict laws of war all trading between enemies 
is prohibited. On April 27, 1898, the Treasury Depart- 
ment issued to collectors of customs certain instructions, 
which were prepared in consultation with the Depart- 
ment of State. These instructions forbade the clearance 
of an American vessel for a Spanish port, but the only 


restriction they placed upon the clearance of any other 
vessel for such a port was that the vessel should not carry 
cargo of contraband of war or of coal. Thus the clear- 
ance of a neutral ship with an American-owned cargo for 
a Spanish port was permitted, and to this extent trading 
between enemies was allowed. 

Two questions affecting commercial relations as well as 
belligerent operations, may be mentioned in this place. 
The first is that of the cutting by a belligerent of subma- 
rine cables owned by neutrals, in order to prevent the 
adversary from making use of them in furtherance of 
hostile designs. The protection of submarine cables out- 
side territorial waters is regulated by the international 
convention signed at Paris, March 14, 1884. This conven- 
tion, to which the United States is a party, expressly pro- 
vides that its stipulations " shall in no wise affect the 
liberty of action of belligerents." The precedents as to 
such action, prior to the war with Spain, were not numer- 
ous, since communication by cables is a comparatively 
recent thing. On the outbreak of the war, the Govern- 
ment of the United States considered "the advantage of 
declaring telegraph cables neutral," and to that end 
directed its naval forces in Cuban waters to refrain from 
interfering with them till further orders. 1 This inhibition 
evidently was soon revoked. Early in May, 1898, two out 
of three cables were cut near Cienf uegos, with a view to 
sever connection with Havana. On May 16, an unsuc- 
cessful effort was made to cut the Santiago de Cuba- 
Jamaica cables; and two days later one of them was 
severed 1.3 miles off Morro Castle. May 20, the cable 
connecting Cuba and Hayti was broken outside the marine 
league off Mole St. Nicholas. July 11, the cable connect- 
ing Santa Cruz del Sur, Trinidad, Cienf uegos and Havana, 
with Manzanillo and the east of Cuba, was cut; as was 
also, five days later, the line connecting Santa Cruz and 
Jucaro. 2 All or nearly all the cables were the property of 
neutrals. The neutral (British) cable from Bolinao, in the 

1 Naval Operations of the War with Spain, 176. 

2 Naval Operations of the War with Spain, 186, 208, 209, 210, 211, 
244, 255. 


Philippines, to Hong 1 Kong was cut by Admiral Dewey. 1 
In all these cases the object of the interruption ^vas to 
confuse and frustrate the military operations, whether 
offensive or defensive, of the enemy. 2 

The second question is that of the disposition of mails 
found on board captured vessels. The instructions issued 
by the Secretary of the Navy, August 18, 1862, to naval 
officers of the United State-, contained the following 
paragraph on this subject: 

"'Fourthly. That, to avoid difficulty and error in rela- 
tion to papers which strictly belong to the captured vessel, 
and mails that are carried, or parcels under official seals, 
you will, in the words of the law, "preserve all the papers 
and writings found on board and transmit the whole of 
the originals unmutilated to the judge of the district to 
which such prize is ordered to proceed;' but official seals, 
or locks, or fastenings of foreign authorities, are in no 

1 When Admiral Dewey obtained possession of the Philippines end of 
the line, he found himself prevented, by the provisions of the Spanish 
franchise under which the cable was laid, from controlling the Hong- 
kong end so as to make of the line an exclusive use. The United 
States then sought permission for the landing at Hongkong of a new 
cable from the Philippines, to be constructed by an American com- 
pany. The British Government, on consultation with the law officers 
of the Crown, decided that to grant the permission under the circum- 
stances would constitute a breach of neutrality, and that it therefore 
could not be done. (Mr. Day, Sec. of State, to Mr. Hay, May 22, 
May 31, and June 3, 1898, MS. Instr., Gr. Br., XXXII, 511, 524, 528.) 

2 Claims for damages were submitted by or on behalf of the compa- 
nies whose cables had been cut, namely, the Eastern Extension Tele- 
graph Company, the Cuba Submarine Telegraph Company, and the 
French Trans-Atlantic Cables Company. The position taken by the 
United States with reference to these claims was that, as a general 
proposition and as a matter of law, neutral telegraphic cables were 
exposed to the same vicissitudes in time of war as other neutral prop- 
erty; that this view found conventional confirmation in Article XV 
of the treaty of Paris of March 14, 1884, for the protection of subma- 
rine cables, which stipulated that the convention should not be under- 
stood to affect the liberty of action of belligerents, but that it was 
preferable to consider the claims from the point of view of equity; 
wherefore the President submitted them to Congress with a recom- 
mendation that, as a matter of equity, they be favorably considered to 
the extent of the actual damage suffered. (Mr. Hay, Sec. of State, to 
Mr. Cambon, March L3, 1900, MS. Notes to French Legation, XI, 21.) 


case, nor on any pretext, to be broken, or parcels covered 
by them read by any naval authorities, but all bags or 
other things covering such parcels, and duly seized and 
fastened by foreign authorities, will be, in the discretion 
of the United States officer to whom they may come, de- 
livered to the consul, commanding naval officer, or legation 
of the foreign government, to be opened, upon the under- 
standing that whatever is contraband or important as evi- 
dence concerning the character of a captured vessel will be 
remitted to the prize court, or to the Secretary of State at 
Washington, or such sealed bag or parcels may be at once 
forwarded to this Department, to the end that the proper 
authorities of the foreign government may receive the 
same without delay." 1 

No international discussion as to the disposition of mails 
arose during the war with Spain. By the Universal Postal 
Convention of Vienna, Art. IV, sec. 1, which was in 
force at the time, "the right of transit" was guaranteed 
"throughout the entire territory" of the countries form- 
ing the Universal Postal Union, of which both the United 
States and Spain are members. This stipulation was held 
"to insure the safe transit under any conditions of closed 
mails passing from one country of the Postal Union to 
another countiy of the Union;" but to have "no bearing 
on mails passing from one post-office to another post-office 
in the same country." 2 

By the protocol signed at Washington August 12, 1898, 
provision was made for the immediate suspension of hos- 
tilities, as a preliminary to the conclusion of peace. The 
blockades were immediately raised, and on August 17, 
1898, the Department of State, in response to inquiries 
made on behalf of the Spanish Government, declared (1) 
that no obstacle would be interposed to the reestablishment 
of the postal service by Spanish steamers between Spain 
on the one side and Cuba, Porto Rico, and the Philippines 
on the other; (2) that no objection would be made to the 
importation of supplies in Spanish bottoms to Cuba and 

1 Official Records of the Union and Confederate Navies, Series I, vol. 
1, pp. 417, 418. 

2 Mr. Smith, Postmaster-General, to the Sec. of State, June 1, 1898, 
MSS. Dept. of State. 


the Philippines, but that it had been decided to reserve the 
importation of supplies from the United States to Porto 
Rico to American vessels; and (3) that a Spanish steamer, 
chartered by French merchants and then lying at Havre, 
would be permitted to proceed to Philadelphia and to take 
mineral oil for industrial purposes, provided it was not to 
be transported to Porto Rico. These answers, it was ad- 
ded, were given with the understanding that American 
vessels would not for the time being be excluded from 
Spanish ports, as well as upon the understanding that, if 
hostilities should at any time be renewed, American ves- 
sels that might happen to be in Spanish ports would be 
allowed thirty days in which to load and depart with non- 
contraband cargo, and that any American vessel which, 
prior to the renewal of hostilities, should have sailed for 
a Spanish port would be permitted to enter such port and 
discharge her cargo, and afterwards forthwith to depart 
without molestation, and, if met at sea by a Spanish ship, 
to continue her voyage to any port not blockaded. 1 These 
conditions were accepted by the Spanish Government, 2 
and commercial intercourse was accordingly restored. 

1 Mr. Moore, Acting Sec. of State, to M. Cambon, French ambassa- 
dor, For. Rel. 1898, 802. 

2 M. Cambon to Mr. Moore, September 6, 1898, For. Re 1 :. 1898, 811.